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QUESTIONS  OF  THE  DAY 


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QUESTIONS  OF  THE  DA  Y.— XXXVII 


AMERICAN 
STATE  CONSTITUTIONS 

A   STUDY  OF   THEIR   GROWTH 


HENRY   HITCHCOCK,  LL.D. 


[(rNIVEBSITl 

NEW  YORK  AND  LONDON 

G.    P.    PUTNAM'S    SONS 

9>\t  ^tiKhetbocIter  ^rcss 

1887 


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COPYRIGHT   BY 

G.  P.  PUTNAM'S  SONS 


Press  of 

G.  P.  Putnam's  Sons 

New  York 


AMERICAN     STATE    CONSTITUTIONS.* 


Mr.  President  and  Gentlemen  of  the  Association  : 

That  saying  of  Andrew  Fletcher,  of  Saltoun,  two  cen- 
turies ago,  is  still  sometimes  quoted  :  "  That  if  a  man 
were  permitted  to  make  all  the  ballads,  he  need  not  care 
who  should  make  the  laws  of  a  nation." 

Whether  this  be  not  an  extravagant  statement,  we 
need  not  now  inquire.  It  may  be  conceded  that  the 
ballads,  still  more  the  folk-songs  of  higher  degree,  which 
find  a  permanent  foothold  in  the  traditions  and  the 
literature  of  a  people,  must  leave  their  mark  upon  its 
character  and  even  upon  its  institutions.  Yet  the  name 
— Chansons  de  GestCy  songs  of  action,  or  of  what  has  been 
acted — given  to  such  poems  as  the  Spanish  Song  of  the 
Cid,  and  its  French  parallel  in  subject  and  form,  the  Song 
of  Roland,  implies  that  the  deeds  of  valor  and  the  scenes 
of  pathos  whose  memory  they  made  immortal  were  the 
flower  and  the  fruit  of  a  national  life  already  existing.  They 
are  an  expression  of  that  life,  rather  than  the  mould  in  which 
it  was  formed.  So  the  ballad  of  Chevy  Chase,  which  Sir 
Philip  Sidney  said  "  stirred  his  blood  like  the  sound  of 

*  An  address  delivered  before  the  N.  Y.  State  Bar  Association  at  its  tenth 
annual  meeting,  at  Albany,  N.  Y.,  January  i8,  1887. 


2  American  State  Constitutions. 

trumpet,"  did  not  create,  though  it  commemorated,  the 
feuds  of  the  Border  and  the  fierce  conflicts  of  Percy  and 
Douglas.  If  the  song  of  Harmodius  and  Aristogeiton^ 
handed  down  through  the  centuries  before  Christ,  in- 
spired the  youth  of  Athens  to  resist  tyrants,  as  Theodore 
Korner's  "  Lyre  and  Sword,"  only  seventy  years  ago, 
inflamed  his  comrades  of  the  Free  Corps  to  still  more 
daring  exploits,  it  was  because  the  former  met  with  eager 
response  in  the  Greek  love  of  liberty,  the  latter  in  the 
German  love  of  Fatherland. 

But  whatever  may  be  the  significance  or  the  influence 
of  the  songs  of  a  people,  it  is  certain  that  in  the  laws 
under  which  they  live  we  shall  find,  explicitly  or  implic- 
itly, the  fullest  expression  of  their  national  life.  Those 
laws  tell  us,  explicitly,  what  conceptions  of  right  practi- 
cally obtain  among  them,  in  what  methods  and  by  what 
machinery  those  conceptions  are  enforced.  Implicitly 
they  contain,  and  to  the  patient  student  they  reveal,  the 
past  as  well  as  the  present  life  of  the  society  in  which 
they  prevail ;  for  laws  and  constitutions  are  a  growth, 
not  a  manufacture.  Theorists  and  doctrinaires  may  con- 
struct,— as  has  been  said  of  the  Abbe  Sieyes  (Carlyle's 
**  Constitution  Builder  "),— a  new  constitution  for  every 
day  in  the  year.  Philosophers  like  John  Locke  may 
elaborate  them  from  classic  models  for  infant  colonies. 
Imperial  charlatans,  posing  as  saviors  of  society,  may  for 
a  time  cajole  or  compel  even  an  intelligent  and  patriotic 
people  to  accept  their  edicts.  But  neither  constitutions 
nor  laws  nor  institutions  have  ever  permanently  endured 
among  a  people  whose  national  life  was  real  and  not 


American  State  Constitutions.  3 

stagnant,  except  in  so  far  as  they  did  express  and  reflect 
that  life. 

"■  Naturam  e xp e lias  f urea ^  tamen  usque  recurretT 
I  am  sure  that  you  will  agree  with  me  that  the  implicit 
record  of  a  people's  history,  past  and  present,  which  may 
be  read  between  the  lines  of  its  formal  legislation,  is  a 
deeply  interesting  one.  The  statute  of  43d  Elizabeth, 
recognized  in  many  of  our  States  to-day  as  the  basis  of 
their  law  of  charitable  trusts — what  a  kindly  light  it 
sheds  upon  the  humane  and  philanthropic  impulses  of 
modern  civilization  !  What  a  history  of  benefactions  its 
brief  preamble  contains !  How  lavish  and  varied  the 
endowments  which  it  tersely  recites  as  then  existing  in 
England,  for  the  relief  of  poverty  and  suffering,  the  main- 
tenance of  disabled  public  servants,  the  promotion  of 
learning,  even  the  relief  or  redemption  of  prisoners  and 
captives, — a  description  of  charity  which  became  less 
urgent  some  two  hundred  years  later,  when  American 
pluck  led  the  way  in  the  suppression  of  Algerine  piracy. 
The  immediate  purpose  of  that  statute  was  simply  the 
reformation  of  alleged  abuses  in  administering  those 
charities,  by  the  appointment  of  commissioners  to  in- 
quire into  and  prevent  the  same.  But  if,  as  a  law  in 
force,  its  life  was  short,  it  survives  as  a  witness  to  the 
charity  of  our  forefathers  ;  as  the  footprints  upon  fossil- 
bearing  rocks  reveal  to  the  geologist  the  species  and  even 
the  habits  of  birds  and  animals  long  since  extinct.  So 
Bishop  Stubbs,  in  his  great  work  on  the  Constitutional  His- 
tory of  England,  has  drawn  from  English  statutes  of  the 
fourteenth  to  the  sixteenth  centuries  important  testimony 


4  American  State  Constitutions. 

as  to  the  condition  of  laborers,  the  combination  of  arti- 
sans for  enforcing  higher  wages, — topics  not  unknown  to 
our  own  times, — and  the  organization  of  those  merchant- 
guilds  and  craft-guilds  or  companies,  whose  growth  indi- 
cated the  decay  of  the  feudal  military  system  and  the 
advent  of  modern  industrial  civilization. 

Turn  to  the  first  constitution  of  your  own  State  of  New 
York,  adopted  April  20,  1777,  amid  the  din  of  the  first 
conflicts  of  the  War  of  Independence,  by  a  Convention 
which  assembled  on  July  10,  1776.  Its  preamble  con- 
tains a  brief  but  fervid  denunciation  of  ''  the  many  tyran- 
nical and  oppressive  usurpations  of  the  King  and  Parlia- 
ment of  Great  Britain  on  the  rights  and  liberties  of  the 
people  of  the  American  colonies,"  and  is  ablaze  with  the 
spirit  which  before  long  made  Saratoga  famous  by  the 
surrender  of  Burgoyne.  It  sets  forth  at  large  the  Declara- 
tion of  Independence  adopted  at  Philadelphia  but  a  few 
days  before  your  Convention  assembled  at  White  Plains, 
and  the  unanimous  resolve  of  the  latter  body  on  July  9, 
1776:  "That  the  reasons  assigned  by  the  Continental 
Congress  for  declaring  the  United  Colonies  free  and 
independent  States  are  cogent  and  conclusive."  This 
was  writing  history,  as  well  as  enacting  an  organic  law. 
No  provision  is  found  in  that  instrument  looking  to  sur- 
render or  even  to  a  possible  reconciliation  of  the  colonies 
with  Great  Britain.  On  the  contrary,  besides  establishing 
a  government  for  the  new  State,  it  provides  for  a  census  of 
its  inhabitants  to  be  taken  seven  years  subsequent  to  the 
termination  of  the  war,  and  also,  for  "■  a  fair  experiment 
to   be    made,"   by  legislative    enactment    after  the    war 


American  State  Constitutions.  5 

should  have  ended,  whether  the  substitution  of  the  ballot 
for  the  viva-voce  method  of  voting  then  in  use  "would 
tend  more  to  preserve  the  liberty  and  equal  freedom  of 
the  people."  One  is  reminded  of  the  Romans,  who  con- 
tinued, it  is  said,  at  the  same  prices  as  before,  to  buy  and 
sell  lands  within  their  city  while  the  Gauls  were  thunder- 
ing at  its  gates.  So  swift  had  been  the  march  of  events, 
so  rapidly  had  become  impassable  the  gulf  between  the 
former  loyal  subjects  of  Great  Britain  and  its  Crown  since 
the  2d  day  of  July,  1776, — when  a  similar  Convention  in 
New  Jersey,  while  declaring,  in  the  State  constitution 
which  it  adopted  on  that  day,  that  all  civil  authority 
under  the  king  of  Great  Britain  was  necessarily  at  an 
end,  nevertheless  added,  as  its  final  clause,  a  proviso  in 
the  following  words : 

"  Provided  always,  and  it  is  the  true  intent  and  meaning  of 
this  Congress,  that  if  a  reconciliation  between  Great  Britain 
and  these  Colonies  should  take  place,  and  the  latter  be  taken 
again  under  the  protection  and  government  of  the  crown  of 
Britain,  this  charter  shall  be  null  and  void,  otherwise  to  remain 
firm  and  inviolable." 

But  it  is  needless  to  multiply  illustrations  of  the  deeper 
significance  of  statutes  and  constitutions.  Every  student 
of  history  has  learned  from  his  Shakespeare  and  his  Scott 
as  well  as  from  Gibbon  and  Macaulay,  that  when  illumi- 
nated by  genius  they  become  instinct  with  life  and  mean- 
ing— as  the  slender  filament  of  dry  carbon  glows  in  the 
electric  lamp. 

But  while  the  laws  of  a  people — using  that  term  in  its 
widest  sense — at  the  same  time  express  its  national  life 


6  American  State  Constitutions. 

and  implicitly  record  its  history,  it  is  also  true  that  they 
exert  a  powerful,  often  a  controlling,  influence  upon  the 
direction  and  the  measure  in  which  that  life  shall  be  de- 
veloped. The  promulgation  of  the  Mosaic  code  among 
the  Hebrews,  the  compilation  of  the  laws  of  Menu  by  the 
Brahmins,  the  adoption  of  the  code  of  Solon  and  of  the 
laws  of  Lycurgus  in  Greece  and  of  the  Twelve  Tables  at 
Rome,  are  familiar  illustrations  of  this  truth,  which  the 
chronicles  of  all  ages  confirm. 

Nowhere  is  this  more  impressively  stated  than  by  Sir 
Henry  Maine,  in  the  first  chapter  of  his  well-known  work 
on  Ancient  Law.  That  learned  writer,  tracing  the  de- 
velopment of  primitive  law  after  its  embodiment  into  a 
code,  points  out  that  thenceforward  what  may  be  called  its 
spontaneous  development  ceases  ;  that  the  changes  there- 
after effected  in  it  are  effected  deliberately  and  from 
without ;  and  that  from  the  moment  when  their  laws  are 
thus  embodied  in  some  permanent  record,  the  stationary 
condition  of  the  human  race  is  the  rule,  the  progressive 
the  exception.  His  discussion  of  the  changes  which  took 
place  in  primitive  law,  after  the  era  of  codes,  is  confined 
to  the  "  progressive  societies."  Concerning  these  he 
makes  a  general  statement  of  great  importance,  which 
is  best  given  in  his  own  words  : 

"  With  respect  to  them  [progressive  societies]  it  may  be  laid 
down  that  social  necessities  and  social  opinion  are  always 
more  or  less  in  advance  of  Law.  We  may  come  indefinitely 
near  to  the  closing  of  the  gap  between  them,  but  it  has  a  per- 
petual tendency  to  reopen.  Law  is  stable  ;  the  societies  we 
are  speaking  of  are  progressive.     The  greater  or  less  happi- 


American  State  Constitutions,  7 

ness  of  a  people  depends  on  the  degree  of  promptitude  with 
which  the  gulf  is  narrowed." 

I  need  not  remind  you  with  what  learning  and  ability- 
Sir  Henry  Maine  has  illustrated  and  developed  this  im- 
portant truth  in  its  application  to  Ancient  Law,  nor  of 
his  well-known  statement  of  the  agencies — Legal  Fic- 
tions, Equity,  Legislation — by  which  Law  is  brought  into 
harmony  with  society.  I  have  referred  to  the  passage 
just  quoted,  because  it  is  applicable  to  every  progressive 
society,  at  every  stage  of  its  existence  ;  and  because  the 
observations  which  I  venture  to  submit  to  you  to-day  re- 
late to  some  of  the  phenomena  which  illustrate  its  appli- 
cation to  the  society  in  which  we  live. 

I  desire  very  briefly  to  call  your  attention  to  a  few  of 
the  more  important  changes  which  the  people  of  the 
several  States  of  this  Union  have  made,  from  time  to 
time,  especially  during  the  past  generation,  in  the  more 
permanent  portion  of  the  laws  which  govern  them, — 
changes  in  the  constitutions  of  those  States,  as  dis- 
tinguished from  their  current  statutory  legislation. 

Let  me  say  at  once,  however,  that  I  have  no  thought 
of  attempting  either  an  elaborate  statement  or  an  ade- 
quate discussion  of  those  changes.  Only  to  enumerate 
them  would  take  more  time  than  even  your  good- 
nature could  spare.  To  expound  them  aright,  to  make 
plain  their  true  significance,  would  be  a  task  demand- 
ing the  genius  and  training  of  the  true  publicist,  together 
with  ample  opportunity  and  leisure  for  the  patient  com- 
parative study  through  which  alone  that  can  be  dis- 
>covered.     What  I  have  proposed  to  myself  is  simply  to 

UBR4^ 

caup 


8  American  State  Constitutions. 

remind  you  of  some  few  of  the  more  important  enact- 
ments of  this  character,  grouping  them  for  convenient 
reference,  and  to  suggest  some  inquiries  which  seem 
to  me  not  without  interest,  and  which  in  competent 
hands  might  be  profitably  followed  up. 

Such  changes  as  these,  whether  in  the  form  of  amend- 
ments or  in  that  of  new  or  revised  constitutions,  may  be 
regarded  in  more  than  one  aspect.  Considered  as  part  of 
the  organic  law,  they  are  new  declarations  by  the  people 
of  the  respective  States,  acting  in  their  sovereign  capacity 
under  the  sanctions  of  law  provided  for  authenticating 
such  action,  as  to  what  shall  thereafter  constitute  absolute 
rules  of  action  and  decision  for  all  departments  and  of- 
ficers of  the  government,  in  respect  of  the  matters  therein 
mentioned,  and  subject  to  the  limitations  contained  in 
the  Constitution  of  the  United  States. 

But  these  constitutional  enactments  are  also  social  and 
political  phenomena.  We  may  study  them  in  order  to 
learn,  not  only  what  they  prescribe,  but,  so  to  speak, 
what  they  reveal.  As  such  phenomena  they  have, — not 
only  for  the  student  of  historical  jurisprudence  but  for 
every  thoughtful  man,  concerned  for  the  future  of  his 
country, — a  significance  quite  distinct  from  that  which 
they  have  either  for  the  officer  who  must  execute,  or  for 
the  citizen  who  must  obey  them.  They  are  res  gestae  in 
a  far  more  important  sense  than  were  the  cries  of  the 
mob,  admitted  as  competent  evidence  on  the  trial  of 
Lord  George  Gordon.     They  signify  and  express,  not  the 

civium  ardor,  prava  jubentium, 
but  the  conclusions  of  a  free  people  as  to  what  changes 


American  State  Constitutioris.  g, 

in  their  organic  law  will  best  promote  the  common  wel- 
fare. Wise  or  unwise,  wholesome  or  dangerous,  those 
conclusions  reveal,  in  some  measure  at  least,  the  drift  of 
that  people's  thought,  the  goal  to  which,  consciously  or 
unconsciously,  it  is  tending ;  as  Agassiz  demonstrated 
from  the  sluggish  flow  of  the  Mer  de  Glace  past  the 
stakes  which  he  had  planted  at  its  former  verge,  not  only 
that  the  huge  glacier  was  a  slowly  moving  river  of  ice, 
but  also  the  rate  and  direction  of  its  irresistible  drift  into 
the  valley  beneath. 

Such  enactments  are  to  be  classed  among  those  ma-^ 
terials  out  of  which,  as  Mr.  Buckle  has  said,  a  philosophic 
history  can  alone  be  constructed.  They  form  indeed  but 
a  very  small  part  of  the  vast  aggregate  of  facts,  with 
which  the  future  historian  must  deal — a  very  small  part 
even  of  the  legislation  of  the  several  societies  which  have 
adopted  them,  and  whose  vigorous  life  is  expressed  and 
recorded  from  day  to  day  in  a  thousand  other  ways. 

But  they  are  unique  in  their  importance,  as  being  the 
broadest,  the  most  permanent,  the  most  authoritative  ex- 
pression of  that  life.  They  are  the  very  foundations  of 
the  accepted  political  and  social  order ;  they  mark  out  the 
chosen  lines  of  progress ;  they  record,  in  brief  but  weighty 
phrase,  the  results  of  controversies  the  most  momentous. 
Three  lines  sufficed  for  that  declaration  in  the  Thirteenth 
Amendment  to  the  Constitution  of  the  United  States, 
after  the  promulgation  of  which  African  slavery  ceased 
to  have  any  legal  sanction. 

But  however  valuable  they  are  as  material  for  the 
historian,   the  question  of  their  true  significance  is  of 


lO  American  State  Constitutions. 

vastly  greater  interest  to  the  people  themselves,  whose 
future,  for  good  or  evil,  they  forebode.  It  is  of  peculiar 
interest  to  the  people  of  this  country,  most  of  all  to  our 
own  profession,  since  each  one  of  us  must  share  the  re- 
sponsibility, as  well  as  the  results,  of  the  great  experiment 
of  Democracy  in  these  United  States.  I  say  '^  experi- 
ment," in  no  doubting  or  fearful  sense.  The  life  of  every 
free  man,  of  every  free  people,  must  be  an  experiment 
until  it  is  ended,  just  because  they  are  free  to  choose 
between  good  and  evil,  though  powerless  to  escape  the 
inevitable  consequences  of  their  final  choice.  May  I 
.recall  those  grave  and  earnest  words  with  which  De 
Tocqueville  concludes  his  work  on  "  Democracy  in 
America  " : 

"  The  nations  of  our  time  cannot  prevent  the  conditions  of 
men  from  becoming  equal ;  but  it  depends  upon  themselves 
whether  the  principle  of  equality  is  to  lead  them  to  servitude 
or  freedom,  to  knowledge  or  barbarism,  to  prosperity  or  to 
wretchedness." 

There  have  been  prophets  not  a  few,  as  we  all  know, 
some  of  whom  have  doubted,  others  have  denied,  the 
more  fortunate  of  these  alternatives.  Philosophers  and 
statesmen  have  echoed  the  gloomy  prediction  of  the  his- 
torian, Macaulay,  thirty  years  ago,  that  it  would  be  im- 
possible to  establish  permanent  institutions  based  upon 
universal  suffrage,  and  have  repeated  with  ominous  shake 
•of  the  head  the  scornful  phrases  in  which  Carlyle  de- 
scribed the  struggle  to  preserve  our  Union,  and  warned 
us  that  we  were,  or  soon  would  be,  **  shooting  Niagara." 
With  some,  no  doubt,  the  wish  was  father  to  the  thought. 


Atnericafi  State  Constitutions.  II 

But  it  is  hardly  worth  one's  while  to  argue  with  prophets, 
— whether,  from  across  your  Canadian  border,  they  predict 
a  continent  submerged  by  tidal  waves  at  the  next  con- 
junction of  that  undiscovered  planet,  Vulcan,  or  from 
beyond  the  ocean  they  foretell  a  republic  dismembered 
among  the  breakers  of  anarchy  and  civil  strife.  It  was 
Fisher  Ames,  I  believe,  who  compared  a  monarchy  to  a 
gallant  ship,  all  sails  set  and  colors  flying,  but  suddenly 
wrecked  upon  hidden  rocks  ;  and  a  republic  to  a  raft,  the 
people  on  which  have  their  feet  in  the  water  most  of  the 
time,  but  the  raft  never  goes  down.  After  all,  these 
predictions  are  best  answered  by  the  logic  of  events.  It 
is  our  business  to  take  care  of  the  logic  by  controlling  the 
events.  As  the  motto  of  George  Washington  had  it : 
Exitus  acta  probat.  That  steadfast,  patient,  and  cheerful 
faith  in  the  strength  and  permanence  of  a  government 
of  the  people,  by  the  people,  for  the  people,  which  is  the 
birthright  of  every  American,  is  founded  upon  eternal 
principles  of  justice  and  equal  right,  whose  ultimate 
prevalence  and  vindication  are  as  much  a  part  of  the 
order  of  the  universe  as  are  the  movements  of  the  planets 
in  their  spheres.  The  conditions  of  righteousness  which 
they  impose  are  indeed  inexorable  for  nations  as  for  indi- 
vidual men.  That  those  conditions,  like  the  Sibyl's  price 
to  Tarquin,  will  sooner  or  later  be  exacted  in  full,  we 
have  learned  from  the  bitter  experience  of  that  struggle 
for  the  Union,  that  irrepressible  conflict,  so  long,  so  often, 
so  vainly  postponed.  But  we  also  learned  even  from  the 
agony  of  that  conflict,  that  the  institutions  thus  brought 
into  deadly  peril  by  our  own  default  had  borne  fruit  in, 


12  America}!  State  Constitutions. 

that  great  and  typical  American,  whose  patient  and 
unflinching  faithfulness  to  duty,  whose  marvellously 
clear  and  kindly  insight,  whose  large-hearted  wisdom, 
born  of  wide  experience  and  deep  sympathy  with  the 
plain  people  from  among  whom  he  sprung,  made  him  a 
true  leader  of  men  ;  at  whose  untimely  death  the  universal 
cry  of  grief  from  our  own  land  was  echoed  by  every  civil- 
ized people,  and  whose  name  is  more  illustrious,  his  im- 
mortal memory  more  beloved,  with  every  passing  year. 
And  we  remember  that  after  that  struggle  was  past,  after 
the  disbanded  armies,  North  and  South,  had  returned  to 
the  pursuits  of  peace,  and  the  republic  had  entered  upon 
its  new  career,  some  of  those  prophets  had  opportunity 
to  witness  the  honors  paid  by  princes,  and  the  more 
heartfelt  and  more  grateful  tribute  of  their  people,  to 
that  other  simple-mannered  American — ex-general,  ex- 
President — who  had  borne  his  patient  and  heroic  part  in 
bringing  their  prophecies  to  naught. 

Certainly  during  all  these  years  the  people  of  these 
States  have  made  many  efforts  to  improve  their  funda- 
mental laws.  Up  to  the  year  i860,  thirty-four  States  in 
all  had  been  admitted  into  the  Union.  In  that  year 
there  were  only  five  States  in  which  the  constitutions 
under  which  they  came  into  the  Union  still  remained  in 
force  without  change,  namely,  Texas,  Wisconsin,  Cali- 
fornia, Oregon,  and  Minnesota.  But  these  constitutions 
were  only  from  three  to  fifteen  years  old,  bearing  date 
respectively  in  1845,  1848,  1849,  ^"^^  i^S/-  ^^  several 
other  States  —  Alabama,  Oregon,  Connecticut,  Maine, 
Massachusetts,    Missouri,   and   North  Carolina, — though 


Americafi  State  Constitutions.  13 

the  constitutions  first  adopted  had  not  been  superseded, 
all  had  been  more  or  less  amended  ;  that  of  Missouri,  for 
example,  seven  times,  and  those  of  Connecticut,  Maine, 
and  Massachusetts,  eight  times  respectively.  In  each  of 
the  other  twenty-two  States  at  least  two  distinct  constitu- 
tions, besides  many  amendments  at  various  dates,  had 
been  in  force  up  to  i860.  The  whole  number  of  com- 
plete constitutions  promulgated  in  those  thirty-four  States, 
up  to  the  year  i860,  was  sixty-nine,  besides  one  hun- 
dred and  one  different  sets  of  amendments.  The  num- 
ber of  new  or  completely  revised  constitutions  adopted 
since  i860 — the  number  of  States  having  since  then  in- 
creased to  thirty-eight — is  thirty-five,  or  an  average 
of  nearly  one  for  each  State  during  a  quarter  of  a 
century.  This  includes,  however,  the  first  consti- 
tutions adopted  for  Colorado,  Nebraska,  and  Nevada, 
admitted  since  i860,  and  also  the  new  or  revised  con- 
stitutions framed  in  eleven  Southern  States — Alabama, 
Arkansas,  Florida,  Georgia,  Louisiana,  Maryland,  Mis- 
souri, South  Carolina,  Texas,  Virginia,  and  West  Vir- 
ginia— during  or  immediately  after  the  war,  but  which 
were  in  every  case  subsequently  replaced  by  new  ones, 
adopted  in  1867  or  later,  and  ratified  by  popular  vote. 
The  number  of  amendments  adopted  since  i860,  treating 
whatever  was  adopted  at  one  time  as  one  amendment, 
though  often  containing  several  articles,  has  been,  as 
near  as  I  can  ascertain,  one  hundred  and  fourteen  in 
all.  In  other  words,  the  total  number  of  distinct  con- 
stitutions, either  newly  adopted  or  completely  revised, 
which  have  been  promulgated  in  these  thirty-eight  States 


14  Atnerican  State  Constitutions. 

in  the  one  hundred  and  ten  years  since  the  Declaration  of 
Independence,  has  been  one  hundred  and  four,  and  to 
those  several  constitutions  two  hundred  and  fourteen 
partial  amendments  have  been  adopted  at  different  times, 
some  of  less  and  some  of  greater  importance. 

But  it  is  also  true  that  during  the  same  period  many- 
constitutional  amendments,  and  some  revised  constitu- 
tions, have  been  submitted  to  the  people  in  various 
States,  either  by  their  Legislatures  or  by  conventions, 
which  have  been  rejected  by  the  popular  vote  ;  of  which 
a  notable  instance  occurred  in  your  own  State  of  New 
York  in  1869.  During  the  last  ten  years  twenty-eight 
amendments,  in  seventeen  States,  and  six  complete  or 
revised  constitutions,  submitted  to  popular  vote,  have 
been  rejected. 

These  statistics  have  a  certain  interest,  I  think,  in  the 
light  of  the  statement  already  quoted  from  Sir  Henry 
Maine — that  social  necessities  and  social  opinion  are 
always  more  or  less  in  advance  of  Law,  and  that  the 
greater  or  less  happiness  of  a  people  depends  upon  the 
degree  of  promptitude  with  which  the  gulf  between  them 
is  narrowed.  That  statement  applies,  of  course,  even 
more  strongly  to  the  current  changes  in  statutory  law, 
which  so  much  more  largely  and  immediately  reflect  the 
movements  of  public  opinion  than  do  changes  in  the 
organic  law. 

But  it  is  a  trite  saying  that  change  is  not  necessarily  im- 
provement. Whether  the  changes  thus  made  in  the  or- 
ganic law  of  these  States,  while  undoubtedly  the  result 
of  changes  in  public  opinion,  and  in  real  or  supposed 


American  State  Constitutions.  15 

social  necessities,  have  been  wisely  made,  is  not  a  ques- 
tion of  figures,  or  of  averages,  but  of  substance,  the  com- 
plete answer  to  which  time  alone  can  give. 

In  connection  with  these  changes,  may  be  noted  the 
action  taken  from  time  to  time  with  reference  to  their 
submission  to  a  direct  popular  vote  for  approval  or  rejec- 
tion. This  has  not  always  taken  place.  Judge  Jameson, 
in  his  valuable  treatise  on  Constitutional  Conventions,  pub- 
lished in  1873,  discusses  this  topic  both  with  reference  to 
the  theory  of  our  institutions,  and  as  a  matter  of  historical 
precedent.  Referring  to  that  work  (Chapter  7)  for  details, 
I  may  give  in  brief  the  results  of  his  historical  inquiries. 

It  appears  that  up  to  1873  one  hundred  and  fifty-two 
conventions  in  all  had  been  held  in  the  United  States 
for  the  purpose  of  framing,  revising,  or  ratifying  constitu- 
tions or  parts  of  constitutions,  either  for  the  Union  or  for 
States  now  members  thereof ;  including  in  that  number 
twenty-eight  conventions  called  simply  to  ratify  proposi- 
tions made  by  other  conventions  or  bodies  having  anal- 
ogous functions — such  as  the  several  State  conventions 
which  ratified  the  Federal  Constitution, — and  six  others 
which  proved  abortive,  such  as  various  meetings  of  the 
Councils  of  Censors  of  Pennsylvania  and  of  Vermont,  and 
the  Rhode  Island  Convention  of  1834.  Of  the  remaining 
one  hundred  and  eighteen  conventions,  properly  speak- 
ing, seventy-eight  submitted  the  fruit  of  their  labors  to 
the  people,  including  the  convention  which  framed  the 
Federal  Constitution,  and  forty  did  not.  But  the  signifi- 
cance of  these  figures  can  be  got  at  only  by  considering 
their  distribution  in  point  of  time. 


1 6  Americari  State  Constitutions. 

Of  the  first  constitutions  formed  by  the  colonies  during^ 
»  the  Revolution,  only  one  was  submitted  to  popular  vote, 
namely,  the  Massachusetts  Constitution  of  1780.  The. 
Rhode  Island  Charter  of  1663  was  not  superseded  or 
amended  at  all  till  1842,  and  the  Connecticut  Constitu- 
tion of  1776,  so  called,  which  was  framed  and  promul- 
gated by  the  Governor  and  Council,  was  little  more  than 
a  declaration  of  independence  of  Great  Britain, — the 
Charter  of  1662  remaining  substantially  in  force  until  the 
Connecticut  Constitution  of  181 8  was  adopted.  The 
other  ten  first  constitutions  of  the  original  colonies,  from 
that  of  New  Hampshire  in  1775,  to  that  of  Vermont  in 
1777,  were  promulgated  by  the  "  Congresses  "  or  conven- 
tions which  framed  them,  and  were  accepted  by  the  peo- 
ple. This  resulted  largely,  no  doubt,  from  the  disturbed 
condition  of  the  country  while  the  war  was  going  on,  and 
the  uncertainty  of  its  issue.  But  all  first  constitutions 
which  have  been  framed  by  conventions  for  States  ad- 
mitted into  the  Union  since  the  Revolution,  from  that  of 
Kentucky  in  1792  to  that  of  Colorado  in  1876,  appear  ta 
have  been  submitted  to  a  vote  of  the  people. 
^  Down  to  1873,  seventy-nine  Revising  Conventions 
had  been  held  in  all,  including  under  that  term  as  well 
those  which  only  proposed  amendments,  as  those  which 
framed  complete  constitutions.  Of  these  fifty  submitted 
their  labors  to  the  popular  vote,  from  that  of  Massachu- 
setts in  1779  to  that  of  Texas  in  1861.  The  work  of  the 
remaining  twenty-nine  conventions  took  effect  without 
popular  ratification,  from  that  of  South  Carolina  in  1777 
to  that  of  Texas  in  1866. 


American  State  Constitutions.  1 7 

This  subject,  and  the  reasons  for  the  diverse  action  so 
taken  during  so  long  a  period,  are  discussed  with  interest- 
ing detail  by  Judge  Jameson.  His  conclusion,  that  not- 
withstanding the  numerous  cases  of  non-submission,  the 
theory  of  our  institutions  and  the  practice  in  peaceful 
times  require  a  popular  ratification,  is  confirmed  by  the 
provisions  now  in  force  in  the  States  generally  for  the 
amendment  and  revision  of  their  constitutions. 

A  summary  of  these  existing  provisions  is  given  in  the 
recent  and  valuable  work  df  Mr.  Stimson,  entitled  "Amer- 
ican Statute  Law."  It  may  be  said  in  general,  that  two 
distinct  modes  of  amending  State  constitutions  are  pro- 
vided for,  as  to  which  respectively  numerous  and  varying 
checks  and  restrictions  are  imposed.  One  of  these,  I 
need  hardly  say,  is  by  amendment  proposed  by  the  Legis- 
lature, the  other  by  amendment  or  revision  of  the  con- 
stitution, in  part  or  whole,  by  a  convention  called  for  the 
purpose.  Provision  is  made  for  both  these  modes  in  the 
constitutions  of  nearly  all  of  the  States  ;  of  which  Article 
XIII  of  the  present  constitution  of  New  York  is  an  ex- 
ample. 

As  to  the  former  method,  by  amendments  originating 
with  the  Legislature,  in  most  of  the  States  either  House 
may  originate  them.  But  in  Vermont  they  can  be  pro- 
posed by  the  Senate  alone,  and  that  only  once  in  ten 
years;  in  Connecticut,  by  the  House  alone.  For  their 
adoption  is  required,  in  some  States,  the  vote  of  a  ma- 
jority, in  others  of  three  fifths,  in  others  of  two  thirds  of 
all  the  members-elect  in  each  House.  In  only  one  State 
is  the  vote  of  a  majority  of  the  members  present  in  each 


1 8  American  State  Constitutions. 

House  sufficient.  In  some,  they  must  be  adopted  by 
two  successive  Legislatures :  either  by  a  majority  of  the 
members-elect  of  each  House,  or  by  a  majority  of  one 
Legislature  and  two  thirds  of  the  next,  or  by  three  fifths 
of  one  and  two  thirds  of  the  next,  or  by  two  thirds  of  one 
Legislature  and  three  fourths  of  the  next. 

In  two  States  amendments  cannot  be  proposed  to 
more  than  one  article  in  any  one  session  of  the  Legis- 
lature ;  in  two  not  more  than  three  amendments  can  be 
submitted  at  the  same  election  ;  in  another,  while  an 
amendment  approved  by  one  Legislature  awaits  the  ac- 
tion of  the  next,  no  other  amendment  can  be  proposed. 
In  New  Jersey  and  Pennsylvania  amendments  cannot  be 
submitted  to  the  people  oftener  than  once  in  five  years, 
in  Tennessee  not  oftener  than  once  in  six  years.  In  In- 
diana, while  an  amendment  approved  by  one  Legislature 
awaits  the  action  of  its  successor,  no  other  can  be  pro- 
posed ;  and  in  fourteen  States,  if  two  or  more  amend- 
ments are  submitted  at  the  same  time,  they  must  be 
separately  submitted.  Such  restrictions  indicate  a  whole- 
some fear  of  hasty  action  by  an  accidental  majority. 

But  after  the  supposed  will  of  the  people  has  been  thus 
expressed  by  their  representatives,  it  is  required  in  thirty- 
five  States  that  amendments  so  adopted  by  the  Legis- 
lature must  be  ratified  by  a  vote  of  the  people  at  the  next 
election  before  they  can  take  effect ;  and  in  one  of  these 
(Rhode  Island)  they  must  be  again  ratified  by  two  thirds 
of  the  members  of  each  House  of  the  next  Legislature 
elected  after  the  popular  ratification.  In  Delaware, 
amendments   adopted   by  the  Legislature  are  not  sub- 


A^nericmi  State  Constitutions.  19 

mitted  to  the  people,  but  must  be  ratified  by  the  next 
Legislature.  In  Kentucky  and  New  Hampshire,  the 
Legislature  is  not  authorized  to  propose  or  adopt  amend- 
ments, but  may  submit  the  question  of  holding  a  con- 
vention to  the  people  ;  and  in  the  latter  State  the  sense 
of  the  people  on  that  question  is  required  to  be  taken  in 
their  town  meetings  at  the  end  of  every  seven  years. 

So,  as  to  the  mode  of  amendment  or  revision  by  con- 
ventions, numerous  precautions  against  hasty  action  are 
provided. 

In  twelve  States,  including  New  York,  when  a  ma- 
jority of  the  members-elect  of  each  House — or  in  Ne- 
braska when  three  fifths,  and  in  other  States  when  two 
thirds  of  such  members — vote  that  such  convention  is 
necessary,  the  question  is  referred  to  the  people.  If  the 
vote  at  the  next  election  (in  Kentucky  at  two  successive 
elections)  is  in  favor  of  holding  a  convention,  the  Legis- 
lature is  required  in  twenty-five  States  to  provide  there- 
for, the  delegates  in  all  cases  to  be  elected  by  the  people. 
In  some  States  the  Legislature  is  required  at  stated  in- 
tervals to  submit  to  the  people  the  question  of  holding 
such  a  convention,  as  in  New  Hampshire,  every  seven 
years  ;  in  Iowa,  every  ten  years  ;  in  Michigan,  every  six- 
teen years  ;  in  New  York,  Ohio,  Maryland,  and  Virginia, 
every  twenty  years. 

In  some  States,  as  in  Missouri,  the  constitution  ex- 
pressly denies  to  the  Legislature  any  power  to  call  such 
conventions  except  in  the  manner  and  under  the  con- 
ditions therein  prescribed.  Important  questions  have 
arisen,  and  may  again  arise  in  the  absence  of  such  provi^ 


20  American  State  Constitutions. 

sions,  as  to  the  extent  of  legislative  powers  in  that  regard. 
Of  this  an  illustration  occurred  in  New  York  in  1820, 
when  a  bill  passed  both  Houses,  by  which  a  constitutional 
convention  was  to  be  called  without  referring  the  question 
to  the  people  in  the  first  instance,  the  amended  constitu- 
tion of  1777,  then  in  force,  containing  no  provision  on 
that  subject.  This  bill  was  sent  to  the  Council  of  Revi- 
sion, of  which  Governor  Clinton,  Chancellor  Kent,  and 
the  Judges  of  the  Supreme  Court  were  members,  and  a 
majority  of  the  Council  vetoed  the  bill,  on  the  single 
ground  that  it  did  not  propose  to  submit  to  the  people 
the  question  of  holding  a  convention,  while  it  did  con- 
template submitting  to  them  an  amended  constitution, 
as  a  whole,  to  be  adopted  or  rejected  in  toto,  without  dis- 
crimination. This  veto  message  is  given  in  full  as  an 
appendix  to  Judge  Jameson's  work,  and  it  can  hardly  be 
doubted  that  the  views  presented  in  that  very  able  paper, 
written  by  Chancellor  Kent,  have  had  much  to  do  with 
the  provisions  since  adopted  in  this  and  other  States  on 
that  subject. 

It  appears,  I  think,  from  the  facts  thus  imperfectly  sum- 
marized, that  the  people  of  these  States,  while  making 
careful  provision  for  the  amendment  of  their  organic  law 
from  time  to  time,  thus  "  narrowing  the  gulf  "  between 
existing  law  and  the  social  opinion  and  social  necessities 
which  constantly  tend  to  go  beyond  it,  have  constantly 
sought  to  guard  against  hasty  action  as  well  on  their  own 
part  as  on  that  of  their  representatives.  However  dif- 
ferent in  detail,  all  such  checks  and  restrictions  indicate 
a  settled  purpose  that,  in  the  language  of  Chancellor  Kent, 


Ainerica7i  State  Co7istitutions.  21 

in  the  veto  message  just  mentioned,  "time  shall  be  given 
for  mature  deliberation  upon  questions  arising  upon  the 
constitution,  which  are  always  momentous  in  their  na- 
ture, and  calculated  to  affect  not  the  present  generation 
alone,  but  their  distant  posterity."  They  are  obstacles, 
as  Mr.  James  Russell  Lowell  has  well  said  in  his  admirable 
address  on  Democracy,  "  not  in  the  way  of  the  people's 
will,  but  of  their  whim."  And  if  these  details  have  been 
wearisome,  you  may  perhaps  find  excuse  for  them  in  the 
reflection,  that  as  the  crucial  test  of  human  character  is 
that  habit  of  self-control  which  secures  the  ascendency  of 
reason  over  passion  and  impulse,  so  there  is  no  augury  of 
the  fate  of  popular  institutions  more  important  than  that 
drawn  from  the  limitations  voluntarily  imposed  by  a  free 
people  upon  their  own  action. 

Our  American  system  of  government  is  proverbially 
one  of  "  checks  and  balances."  This  is  true  both  of  the 
State  and  the  Federal  Constitution,  though  necessarily  of 
somewhat  different  application  to  each.  Von  Hoist,  in 
his  History  of  the  Federal  Constitution,  seems  to  con- 
sider such  features  in  that  instrument  as  the  result  alone 
of  concessions  and  compromises  between  conflicting  State 
interests,  compelled  by  the  circumstances  of  the  time, 
and  yielded  only  as  the  alternative  "  to  the  certain  ruin 
consequent  upon  a  continuation  of  the  old  confedera- 
tion." Conceding  this  as  to  questions  which  arose  be- 
tween the  States,  it  does  not  explain  the  distribution 
and  limitations  of  power  in  State  constitutions  adopted 
before  that  crisis  arose,  as  well  as  ever  since.  And  how- 
ever true  it  may  be,  as  Von  Hoist  says,  that  "  the  historical 

VEBSITT  i 


22  American  State  Constitutions. 

fact  is  that  the  (Federal)  Constitution  was  extorted  from 
the  grinding  necessity  of  a  reluctant  people,"  and  that  it 
"  was  the  living  expression  of  the  actual  circumstances  of 
the  time/' — whatever  food  for  thought  we  may  find  in  his 
sharp  criticisms  of  the  "  unconditional  admiration  "  of 
Americans  for  that  instrument,  and  of  what  he  describes 
as  "  the  self-complacency  and  pride  of  a  people  who  es- 
teem themselves  special  objects  of  the  care  of  the  Ruler 
of  the  Universe," — yet  the  fact  remains  that  the  people 
of  these  States,  while  holding  to  their  belief  in  a  Divine 
Providence  controlling  the  affairs  of  men  and  the  events 
of  history,  have  also  constantly  imposed  restrictions 
upon  their  own  action  as  well  as  upon  that  of  their 
chosen  representatives  and  public  servants. 

In  mentioning  some  of  the  more  recent  changes  in 
American  State  constitutions,  you  will  permit  me  to  re- 
peat that  I  do  not  attempt  to  enumerate  all  that  are  im- 
portant, much  less  to  instruct  you  as  to  their  significance  ; 
but  only  to  suggest  some  inquiries  which  might  be  profit- 
ably followed  up. 

The  most  casual  examination  of  the  changes  made  in 
those  instruments  during  the  last  forty  or  fifty  years, 
gives  plain  indications  not  only  that  new  questions  have 
arisen  and  new  political  problems  presented  themselves, 
but  that  new  methods  have  been  adopted  in  the  organic 
laws  of  many  States  for  meeting  them. 

None  are  more  important  than  those  which  relate  to 
the  qualifications  for  exercising  the  right  of  suffrage, — 
the  broad  foundation  upon  which  the  whole  frame-work 
of  popular  government  rests.     None  are  more  significant 


American  State  Constitutions.  25, 

of  the  vast  changes  which  have  taken  place  aHke  in  pub- 
lic opinion  and  in  the  status  of  great  numbers  of  the 
people  of  this  country. 

The  enfranchisement  of  the  colored  race  in  the  South- 
ern States,  their  equal  right  to  the  protection  of  the  law, 
and  their  exemption  from  discrimination  by  any  State  in 
the  exercise  of  the  elective  franchise  on  account  of  race, 
color,  or  previous  condition  of  servitude,  were  direct  con- 
sequences of  the  civil  war.  But  they  were  brought 
about  by  the  13th,  14th,  and  15th  Amendments  of  the 
Constitution  of  the  United  States  and  the  Federal  Stat- 
utes enacted  in  pursuance  thereof,  and  not,  in  the  first 
instance,  by  changes  in  State  constitutions.  These  events, 
therefore,  while  of  unspeakable  importance  to  the  future 
of  the  whole  country,  and  at  once  imposing  new  limita- 
tions upon,  and  giving  a  new  direction  to,  constititutional 
and  statutory  legislation  by  the  States,  are  not  within 
the  scope  of  these  observations.  But  they  have  resulted 
in  action  by  the  people  of  the  several  States,  which  in- 
dicates how  radical  was  the  political  revolution  thus  ac- 
complished, and  the  extent  to  which  its  results  have  been 
accepted. 

In  the  cases  of  Minor  vs.  Happersett,  21  Wallace,  178, 
decided  in  1 874,  and  United  States  vs.  Reese,  92  U.  S.,  2 1 7, 
and  United  States  vs.  Cruikshank,  92  U.  S.,  555-6,  de- 
cided in  1875,  the  United  States  Supreme  Court  held 
that  the  right  of  suffrage  in  any  State  is  not  a  necessary 
attribute  of  national  citizenship,  nor  was  that  right  con- 
ferred upon  any  one  either  by  the  Constitution  of.  the 
United   States  as   originally  adopted,  or  by  the    14th  or 


24  American  State  Constitutions. 

15th  Amendment  thereto, — the  adoption  of  which  respec- 
tively was  proclaimed  on  July  28,  1868,  and  March  30,  1870. 
In  other  words,  that  court  held  that  the  right  to  vote  in 
the  United  States  comes  from  the  States,  though  the 
right  to  be  exempted  from  discrimination  in  the  exercise 
of  the  elective  franchise,  on  account  of  race,  color,  or  pre- 
vious condition  of  servitude,  is  secured  to  all  citizens  of 
the  United  States,  by  the  15th  Amendment.  Subject  to 
that  restriction  it  remained  for  the  States  respectively  to 
determine  what  should  be  the  qualification  for  suffrage ; 
and  the  answer  to  that  question  furnished  by  the  consti- 
tutions adopted  or  amended  since  the  civil  war  is  perti- 
nent to  this  inquiry. 

In  i860  the  institution  of  slavery  existed  in  fifteen 
States — in  all  which,  at  that  date,  the  right  of  suffrage 
was  confined  to  free  white  male  citizens,  otherwise  quali- 
fied. In  three  of  these  States — Maryland,  Delaware,  and 
Kentucky — that  provision  still  remains  in  the  constitution. 
In  the  constitutions  now  in  force  in  the  other  twelve,  the 
word  "white"  no  longer  appears  in  that  connection,  nor 
is  it  found  in  that  of  the  new  State  of  West  Virginia.  Of 
the  remaining  twenty-two  States,  the  constitutions  now  in 
force  in  Ohio,  Kansas  and  Oregon  alone  still  retain  the 
word  ''  white,"  in  describing  the  qualifications  of  electors. 
I  am  speaking,  of  course,  simply  of  existing  provisions  in 
State  constitutions,  without  reference  to  the  effect  of  the 
Federal  constitution  as  amended. 

But  we  find  other  new  provisions  in  the  constitutions 
of  the  former  slave  States,  pertinent  to  this  head,  though 
not  directly  relating  to  the  right  of  suffrage.     Eleven  of 


American  State  Constitutions.  25- 

them — Alabama,  1875;  Arkansas,  1874;  Florida,  1868; 
Georgia,  1877;  Louisiana,  1868;  Mississippi,  1868;  Mis- 
souri, 1865  and  1875  ;  North  Carolina,  1876;  South  Caro- 
lina, 1868  ;  Tennessee,  1870;  Virginia,  1870 — now  expressly 
prohibit  slavery  or  involuntary  servitude  except  for  crime. 
In  view  of  the  13th  Amendment  to  the  Federal  constitu- 
tion all  such  prohibitions  of  slavery  must  be  taken  as 
inserted  in  State  constitutions  ex  industria.  The  Mary- 
land constitution  of  1867  prohibits  the  re-establishment 
of  slavery,  but  claims  compensation  from  the  United 
States  for  its  abolition.  The  Delaware  constitution  of 
1831,  though  amended  in  1875,  does  not  mention  the 
subject.  The  Kentucky  constitution  of  1850,  which 
recognized  slavery  and  prohibited  emancipation  without 
full  compensation,  remains  unchanged  ;  propositions  to 
hold  a  constitutional  convention,  submitted  to  the  people 
in  1874,  and  again  in  1883,  having  both  been  rejected  by 
large  majorities.  The  Texas  constitution  of  1876  does 
not  in  terms  prohibit  slavery,  but  confers  the  right  of  suf- 
frage upon  every  adult  citizen  of  the  United  States  pos- 
sessing certain  other  qualifications,  among  which  race  or 
color  is  not  included. 

It  may  also  be  observed  that  in  thirteen  of  the  remain- 
ing States — Vermont  (1793),  Rhode  Island  (1842),  Ohio 
(185 1),  Wisconsin  (1848),  Minnesota  (1857),  Indiana  (185 1), 
Michigan  (1850),  Iowa  (1857),  Kansas  (1859),  Nebraska 
(1866),  California  (1849),  Nevada  (1864),  Colorado  (1876) 
— slavery  is  expressly  prohibited  by  the  constitution  ; 
but  in  all  these,  except  Nebraska,  Nevada,  and  Colorado, 
such  provisions  antedate  the  civil  war  ;  that  of  Vermont, 


26  American  State  Constitutions. 

for  example,  being  found  in  its  original  constitution  of 

1793. 

In  connection  with  these  may  also  be  noted  such  pro- 
visions as  that  in  Georgia  that  the  social  status  of  the 
citizen  shall  never  be  the  subject  of  legislation ;  in  Vir- 
ginia, South  Carolina,  Alabama,  and  Florida,  that  all 
citizens  of  the  State  possess  equal  civil  rights  and  politi- 
cal rights  and  public  privileges  ;  in  West  Virginia,  that 
every  citizen  is  entitled  to  equal  representation  in  the 
government ;  in  Arkansas,  that  no  citizen  shall  be  de- 
prived of  any  right  or  exempted  from  any  duty  on 
account  of  race  or  color ;  in  Maryland,  that  no  person 
shall  be  incompetent  as  a  witness  on  account  of  race  or 
color,  unless  hereafter  so  declared  by  Act  of  the  General 
Assembly ;  in  Mississippi,  that  the  right  of  all  citizens  to 
travel  on  all  public  conveyances  shall  not  be  infringed  ;. 
and  in  North  Carolina  and  Tennessee,  prohibiting  the 
intermarriage  of  white  persons  with  negroes  or  mulat- 
toes,  or  their  cohabitation  as  husband  and  wife, — which 
last  is  in  twelve  other  States  prohibited  by  statute. 
V  Pertinent  here  also,  though  properly  falling  under  the 
head  of  education,  are  the  constitutional  provisions  in 
West  Virginia,  North  Carolina,  Tennessee,  Missouri, 
Texas,  Georgia,  and  Alabama,  that  white  and  colored 
children  shall  be  taught  in  separate  public  schools.  On 
the  other  hand,  the  Louisiana  constitution  of  1868  forbids 
separate  schools  for  any  race  exclusively;  and  those  of 
South  Carolina  and  Colorado  provide  expressly  that  the 
public  schools  shall  be  open  to  all  children  without  dis- 
tinction of  race  or  color. 


American  State  Cojtstitjitions.  27 

But  a  study  of  American  State  constitutions  shows  that 
■questions  of  race  and  color  are  not  the  only  ones  which 
have  been  mooted  in  respect  of  the  right  of  suffrage  or  of 
holding  ofifice.  If  time  permitted,  it  would  be  interesting 
to  note  the  various  changes  which  have  been  made  in  re- 
spect of  property  and  educational  qualifications  ;  and  in 
respect  of  the  prior  residence  required  for  voters,  and  the 
extension  of  the  suffrage  to  persons  not  citizens  of  the 
United  States  ;  also,  how  far  the  agitation  in  favor  of 
permitting  women  to  vote  and  hold  office  has  impressed 
itself  upon  the  organic  law.  I  can  barely  allude  to  these 
important  heads. 

As  to  a  property  qualification,  it  must  suffice  to  say 
that  whereas  this  was  formerly  required  in  many  States, 
— as,  among  others,  in  Maryland  until  18 10,  in  Massa- 
chusetts until  1822,  in  New  York  until  1826,  in  New 
Jersey  until  1844,  in  Connecticut  until  1845,  i^  Virginia 
until  1850,  in  North  Carolina  until  1865,  and  in  Pennsyl- 
vania until  1873, — Rhode  Island  is,  I  believe,  the  only 
State  now  requiring  an  elector  to  own  property,  though 
in  several  he  must  have  paid  such  taxes  as  required  of 
him,  or  a  poll-tax  if  required  by  law.  On  the  other 
hand,  the  constitutions  of  Minnesota,  Kansas,  North 
Carolina,  Arkansas,  California,  Alabama,  and  Missis- 
sippi, now  provide  that  there  shall  be  no  property  quali- 
fication for  the  right  of  suffrage.  In  1882,  the  payment 
of  a  capitation  tax  as  a  pre-requisite  for  voting  was  abol- 
ished in  Virginia,  and  an  amendment  was  adopted  in 
South  Carolina  forbidding  the  General  Assembly  ever  to 
pass  any  law  that  will  deprive  any  of  the  citizens  of  that 


28  American  State  Constitutions. 

State  of  the  right  of  suffrage  except  on  due  conviction  of 
treason,  murder,  burglary,  larceny,  perjury,  forgery,  or 
other  infamous  crime,  or  duelling.  The  Texas  consti- 
tution of  1876  contains  an  important  provision,  to  the 
effect  that  while  all  qualified  electors,  who  during  the 
six  months  next  preceding  a  municipal  election  have  re- 
sided in  the  municipality,  may  vote  for  all  elective  officers 
thereof,  none  but  those  who  pay  taxes  on  property  in 
such  municipality  may  vote  in  any  election  to  determine 
expenditure  of  money  or  assumption  of  debt.  The  sig- 
nificance, and  I  venture  to  add  the  wisdom,  of  this  pro- 
vision require  no  comment. 

A  provision  similar  in  principle  was  contained  in  the 
very  important  amendment  proposed  as  Article  XVII  to 
the  constitution  of  New  York,  and  which  passed  the 
Legislature  of  1877,  but  failed  in  that  of  1878.  That 
amendment  excited  the  liveliest  interest  in  other  States, 
for  it  dealt  with  one  of  the  gravest  problems  now  before 
the  people  of  this  nation, — the  honest,  economical,  and 
efficient  administration  of  municipal  governments. 

In  many  States  every  male  of  foreign  birth  aged  twenty- 
one,  who  has  declared  his  intention  to  become  a  citizen 
according  to  the  United  States  naturalization  laws,  not 
less  than  a  prescribed  time  before  the  election,  is  per- 
mitted to  vote, — the  time  so  prescribed  varying  from 
thirty  days  to  one  year.  In  every  State  a  certain  period 
of  residence  in  the  State  prior  to  the  election  is  required, 
— in  two  by  statutes,  in  the  rest  by  the  constitution, — the 
time  so  prescribed  varying  from  sixty  days  to  two  years, 
but  one  year  being  the  prescribed  period  in  a  large  ma- 


American  State  Constitutions.  29* 

jority  of  the  States.  In  many  States  the  voter  must  also 
have  resided  in  the  voting  district  for  a  period  varying 
from  ten  days  to  one  year. 

The  organic  law  of  some  States,  and  the  amendments 
proposed  in  others,  show  the  activity  of  the  modern 
movement  in  favor  of  permitting  women  to  vote  and 
hold  office.  Every  State  constitution  now  in  force  speci- 
fies that  the  elective  franchise  is  confined  to  males.  But 
the  constitution  of  Wisconsin  authorizes  the  Legisla- 
ture to  extend  the  right  of  suffrage  to  persons  not 
enumerated  therein  as  electors,  such  law  to  take  effect 
if  approved  by  a  majority  of  the  votes  cast  at  a  general 
election.  By  the  Colorado  constitution  of  1876  the  Legis- 
lature was  required  at  its  first  session,  and  authorized 
thereafter,  to  enact  laws  extending  the  right  of  suffrage 
to  women  of  lawful  age,  otherwise  qualified,  the  same 
to  take  effect  if  approved  by  a  majority  of  electors  at 
a  general  election.  Such  a  law  was  passed,  and  in 
October,  1877,  was  submitted  to  popular  vote,  but  was 
rejected  by  14,000  to  7,400.  Similar  amendments  have 
since  then  failed  or  been  rejected  in  other  States  :  in 
the  Indiana  Legislature  of  1883,  after  passing  that  of 
1882,  and  by  popular  vote  in  Nebraska  in  1882,  and  in 
Oregon  in  1884.  On  the  other  hand,  women  are  now 
permitted  to  vote,  in  all  respects  like  men,  in  the  Terri- 
tories of  Washington,  Wyoming,  and  Utah. 

But  in  respect  of  educational  matters  such  proposi- 
tions have  met  with  more  favor.  The  constitution  of 
Kansas  prescribes  that  the  Legislature,  in  providing  for 
the  formation  and  regulation  of  schools,  shall  make  no 


30  American  State  Constitutions. 

distinction  between  the  rights  of  males  and  females. 
Those  of  Minnesota  and  Colorado  provide  that  women 
aged  twenty-one  may  vote  at  any  election  of  school  offi- 
cers or  upon  any  measure  relating  to  schools,  and  may 
hold  any  office  pertaining  solely  to  the  management 
thereof :  and  a  like  provision  as  to  holding  such  office  is 
found  in  the  constitutions. of  Pennsylvania  and  Louisiana. 
The  several  changes  already  mentioned  plainly  mark  the 
constant  tendency  towards  putting  completely  into  prac- 
tice that  theory  of  government  so  tersely  expressed  by  Mr. 
Lowell  in  his  address  on  Democracy,  already  mentioned  : 

"  The  democratic  theory  is  that  those  constitutions  are  likely 
to  prove  the  steadiest  which  have  the  broadest  base,  that  the 
right  to  vote  makes  a  safety-valve  of  every  voter,  and  that  the 
best  way  of  teaching  a  man  how  to  vote  is  to  give  him  the 
chance  of  practice." 

Nevertheless,  the  tendency  has  not  always  been  abso- 
lutely uniform,  nor  has  the  theory  of  universal  suffrage 
been  maintained  without  exception.  The  race  questions 
which  have  excited  so  much  feeling  on  the  Pacific  coast, 
and  which  have  become  not  only  prominent  in  the  legisla- 
tion of  those  States,  but  also  matters  of  national  concern, 
are  familiar  to  us  all. 

The  Oregon  constitution  of  1857,  still  in  force,  provided 
that  no  Chinaman,  not  previously  a  resident  of  Oregon, 
should  ever  hold  any  real  estate  or  mining  claim,  or  work 
any  mining  claim  therein,  and  that  the  Legislature  should 
provide  by  law,  in  the  most  effective  manner,  for  carrying 
out  this  provision. 


American  State  Constitutions.  31 

The  first  constitution  of  California,  in  1849,  while  con- 
fining the  right  of  suffrage  to  white  male  citizens  of  the 
United  States,  made  no  other  distinction  of  race.  But 
the  constitution  of  1879  expressly  withholds  the  right  of 
suffrage  from  natives  of  China,  in  company  with  idiots, 
insane  persons,  and  convicted  felons ;  and  the  nineteenth 
article  of  that  constitution  is  devoted  entirely  to  that 
people.  All  corporations  existing  or  to  be  formed  under 
the  State  laws  are  forbidden  directly  or  indirectly  to 
employ  any  Chinese  or  Mongolian  in  any  capacity.  No 
Chinamen  may  be  employed  on  any  public  work,  except 
in  punishment  for  crime.  Penalties  must  be  prescribed 
by  law  for  the  punishment  of  all  companies,  domestic  or 
foreign,  for  the  importation  of  Coolie  labor,  and  the 
Legislature  is  required  to  delegate  to  municipalities  all 
necessary  power  for  the  removal  of  Chinese  from  their 
limits,  or  their  restriction  to  prescribed  localities,  and  also 
to  punish  the  introduction  of  Chinese  into  the  State  for 
the  future.  In  Nevada,  at  the  general  election  in  1880, 
constitutional  amendments  concerning  suffrage  and  hold- 
ing office,  striking  out  the  word  "  white  "  and  forbidding 
discrimination  on  account  of  color  and  previous  condition 
of  servitude,  were  adopted  by  more  than  14,000  votes 
against  600 ;  while  an  amendment  removing  the  existing 
prohibition  against  Chinese  immigration  was  voted  down 
by  17,259  votes  to  183. 

A  different  class  of  restrictions,  present  or  prospective, 
upon  the  right  of  suffrage,  appears  in  the  constitution  of 
four  States — namely,  an  educational  qualification.  In 
Connecticut,    by   an   amendment    adopted   in    1855,   no 


32  American  State  Constitutions. 

person  can  be  admitted  as  an  elector  who  is  not  able 
to  read  any  article  of  the  constitution  or  any  section 
of  the  statutes  of  the  State.  In  Massachusetts,  an 
amendment  adopted  in  1857  denies  the  right  to  vote 
or  hold  office  to  any  one  who  is  not  able  to  read 
the  constitution  in  the  English  language  and  to  write 
his  name,  saving  persons  already  entitled  to  vote,  or 
physically  disabled.  The  Florida  constitution  of  1868 
required  the  Legislature  to  enact  laws  requiring  educa- 
tional qualifications  for  electors  after  the  year  1880,  sav- 
ing all  persons  previously  entitled  to  vote ;  and  the 
Colorado  constitution  of  1876  authorized  the  General 
Assembly  to  prescribe  by  law  after  the  year  1890  an  edu- 
cational qualification  for  electors  with  the  like  saving. 
But  the  Alabama  constitution  of  1875  prohibits  any  edu- 
cational or  property  qualification  for  suffrage  or  office,  in 
the  same  paragraph  which  forbids  discrimination  on 
account  of  race,  color,  or  previous  condition  of  servitude  ; 
and  the  Mississippi  constitution  of  1878  contains  a  simi- 
lar prohibition  in  immediate  connection  with  the  pro- 
hibition of  slavery. 

This  contrast  between  the  provisions  which  require, 
and  those  which,  under  very  different  circumstances, 
forbid,  an  educational  qualification  for  suffrage,  is  signifi- 
cant at  once  of  the  greatest  danger  and  the  greatest 
dilemma  which  American  institutions  are  forced  to  meet. 
Such  a  requirement  is  but  the  complement  of  those  dec- 
larations found  in  many  State  constitutions,  that  without 
a  general  diffusion  of  knowledge  and  intelligence  our 
liberties  cannot  be  preserved,  and  of   those  provisions 


American  State  Const ittit ions.  33 

for  the  free  education  of  all  citizens  which  are  found  in 
almost  all  of  them,  and  in  pursuance  of  which  such  lavish 
provision  has  been  made  both  by  the  Federal  government 
and  by  the  States  themselves. 

Upon  that  foundation,  the  base  of  the  political  edifice 
can  not,  indeed,  be  laid  too  broad.  But,  that  condition 
disregarded — those  foundations  undermined  and  permit- 
ted to  sink  into  the  quagmire  of  popular  ignorance — the 
time  can  not  be  far  distant,  as  time  is  reckoned  in  the  life 
of  nations,  when  that  edifice,  once  so  fair  and  stately, 
shall  be  engulfed. 

One  other  class  of  recent  enactments  made  or  proposed 
with  reference  to  the  exercise  of  that  right,  calls  for  brief 
mention, — namely,  those  which  look  to  what  is  called 
minority  representation. 

The  Illinois  constitution  of  1870  provides  for  the 
election  of  three  representatives  in  each  senatorial  dis- 
trict, and  allows  each  voter  to  cast  three  votes  for  one 
candidate,  or  to  distribute  his  votes  or  fractions  thereof 
among  the  candidates,  as  he  may  see  fit.  The  same  con- 
stitution permits  shareholders,  at  corporate  elections,  to 
cumulate  all  their  votes  on  one  candidate,  or  distribute 
them  among  as  many  candidates  as  they  may  see  fit. 
Like  provisions  concerning  corporate  elections  have  been 
adopted  since  1870  in  the  States  of  Pennsylvania,  Nebras- 
ka, West  Virginia,  Missouri,  and  California. 

The  Pennsylvania  constitution  of  1873  also  directs  that 
in  elections  at  which  two  or  more  supreme  judges,  or 
two  or  more  designated  county  officers,  are  to  be  chosen, 
each  elector  shall  vote  for  only  one  of  two,  or  two  of  three, 


34  American  State  Constitutions. 

candidates.  But  in  Ohio,  in  1874,  an  amendment,  sepa- 
rately submitted,  which  provided  for  minority  representa- 
tion in  elections  for  three  or  more  supreme  and  circuit 
judges,  was  rejected  by  a  great  majority.  The  amend- 
ment to  the  constitution  of  New  York,  already  mentioned, 
which  passed  the  Legislature  of  1877,  but  failed  in  that 
of  1878,  authorized  provision  to  be  made  by  law  for 
giving  to  minorities  a  proportionate  share  of  representa- 
tion in  city  boards. 

Other  details  of  constitutional  changes  in  respect  to 
voting  and  holding  office  might  be  mentioned,  but  I  can 
detain  you  no  longer  upon  this  subject.  The  further 
and  important  inquiry, — to  what  extent  and  in  what 
manner  such  constitutional  provisions  are  made  effective 
by  statutes  and  by  that  public  opinion  which  gives  its 
ultimate  vitality  and  value  to  all  legislation,  is  quite  be- 
yond the  limits  or  purpose  of  these  remarks. 

Another  class  of  notable  changes  in  State  constitutions, 
consists  of  those  restrictions  upon  the  law-making  power, 
the  frequency  and  extent  of  which  have  so  greatly  in- 
creased of  late  years. 

It  would  be  both  tedious  and  useless  to  enumerate  the 
successive  steps  in  this  direction  or  the  particulars  of 
such  restrictions.  A  comparison  of  constitutions  in  force 
fifty  years  ago,  such  as  the  constitution  of  Illinois  adopt- 
ed in  1818,  of  Missouri  in  1820,  or  of  New  York  in  1821, 
with  the  present  constitution  of  IlHnois  adopted  in  1870, 
of  Pennsylvania  in  1873,  of  Missouri  in  1875  and  Califor- 
nia in  1879,  ^ot  to  mention  amendments  or  revisions  in 
other  States,  shows  how  great  the  change  has  been. 


American  State  Constitutions.  35 

For  example,  the  Missouri  constitution  of  1820,  includ- 
ing all  amendments  up  to  1855,  contained  but  three  ex- 
press restrictions  upon  the  power  of  the  General  Assembly 
to  pass  laws: — one  relating  to  banks,  another  to  slavery, 
and  a  third  prohibiting  legislative  divorces.  Article  IV 
of  the  Missouri  constitution  of  1875,  now  in  force,  con- 
tains fifty-six  sections,  more  than  half  of  which  either 
prohibit  the  enactment  of  laws  upon  designated  subjects 
or  for  designated  purposes,or  prescribe  in  detail  the  man- 
ner of  enacting,  amending,  and  repealing  laws  already  in 
force.  Thirty-three  of  those  sections  relate  to  legisla- 
tive proceedings.  Eighteen  of  these  are  wholly  new, 
many  of  them  copied  from  the  Illinois  and  Pennsylvania 
constitutions  of  1870  and  1873  respectively,  where  they 
first  appeared  ;  and  the  remainder  were  first  adopted  in 
Missouri  in  the  constitution  of  1865.  The  constitutions 
of  many  other  States  contain  restrictions  of  like  char- 
acter, though  less  numerous. 

In  many  States  the  Legislature  is  now  forbidden  to  pass 
any  local  or  special  law  in  relation  to  certain  designated 
subjects,  a  complete  list  of  which,  as  given  in  Mr.  Stim- 
son's  compilation,  exceeds  sixty  in  number, — though  all 
of  these  are  not  found  in  any  one  constitution.  A  pro- 
hibition of  this  kind  was  added  to  the  constitution  of 
New  York  in  1874,  by  which  the  enactment  of  private  or 
local  bills  in  any  of  thirteen  specified  cases  was  forbidden. 
In  many  States  is  forbidden  the  enactment  of  any 
special,  local  or  private  law  in  any  case  for  which  pro- 
vision has  been  (or  in  five  States,  may  be)  made  by  gen- 
eral law  ;  and  in  Missouri  the  question  whether  a  general 


36  American  State  Constitutions. 

law  can  be  made  applicable,  is  declared  to  be  a  judicial 
question,  despite  any  legislative  assertion  to  the  contrary. 

In  twelve  States  the  Legislature  is  forbidden  to  create 
any  corporation  whatever,  municipalities  included,  except 
by  general  law,  and  in  thirteen  others,  to  create  by  special 
act  any  except  municipal  corporations  or  those  to  which 
no  general  law  is  applicable.  In  some  States  corporations 
can  be  created  by  special  act  only  for  municipal,  charita- 
ble, or  reformatory  purposes.  Such  provisions  are  not 
intended  to  discourage  the  formation  of  private  corpora- 
tions. On  the  contrary,  in  all  these  States  general  laws 
exist  under  which  they  can  be  formed  with  great  facility. 
Indeed,  the  defects  in  some  of  those  statutes  and  their 
failure  to  provide  safeguards  against  some,  at  least,  of  the 
very  evils  which  they  were  intended  to  meet,  might  well 
suggest  to  legislators  the  question  whether  in  avoiding 
the  Scylla  of  special  legislation,  they  have  not  been  drawn 
into  the  Charybdis  of  franchises  indiscriminately  bestowed. 
Perhaps  the  time  will  come  when  recommendations  such  as 
have  been  urged  by  your  own  Railroad  Commission  will  be 
acted  on  (N.  Y.  R.  R.  Comm'rs  Report,  1884,  P-  64)>  ^"^^ 
the  promoters  of  a  new  railroad  will  be  required  to  fur- 
nish some  better  reason  for  its  existence,  and  for  their 
exercising  the  sovereign  power  of  eminent  domain,  than 
the  chance  of  forcing  a  company  already  established  to 
buy  them  out, — or,  failing  that,  the  alternative  of  being 
sold  out  under  foreclosure,  pending  a  receivership. 

But  modern  restrictions  upon  the  law-making  power 
relate  to  much  more  than  the  enactment  of  special  or 
local  laws.     They  include  in  some  States  stringent  provi- 


American  State  Constitutions.  37 

sions  as  to  the  manner  in  which  bills  must  be  introduced, 
entitled,  enacted,  amended,  or  repealed  ;  restrictions  upon 
or  prohibitions  of  the  creation  of  State  or  municipal 
indebtedness  ;  denials  of  power  to  grant  or  authorize 
extra  compensation  to  any  State  or  municipal  officer, 
agent,  or  contractor  ;  prohibitions  against  the  granting  of 
public  money  or  loaning  the  public  credit  to  any  person 
or  corporation,  and  against  the  release  of  debts  due  to, 
or  liens  held  by,  the  State ;  against  appropriations  in  aid 
•of  any  church  or  religious  denomination,  or  minister 
thereof,  or  in  aid  of  any  benevolent  or  educational  insti- 
tution not  wholly  under  the  control  of  the  State  ;  against 
the  levy  of  State  or  county  taxes,  or  the  authorizing  of 
municipal  taxes,  beyond  a  prescribed  limit  or  percentage 
upon  the  assessed  value  of  the  property  taxed  ;  against 
the  contracting  even  of  a  permitted  debt  unless  accom- 
panied by  prescribed  provisions  for  its  repayment  within 
a  specified  time ;  and  in  some  cases  express  prohibitions 
against  the  assumption  or  payment  by  the  State  of  cer- 
tain designated  claims,  including,  in  five  Southern  States, 
the  assumption  or  payment  of  any  debt  or  obligation  in- 
curred in  aid  of  rebellion  against  the  United  States.  In 
many  States  legislative  sessions  are  restricted  to  a  speci- 
fied number  of  days,  though  in  some  the  Legislatures  are 
permitted  to  sit  longer  at  reduced  rates  of  compensation. 
In  some,  no  bill  introduced  after  a  certain  number  of  days 
from  the  beginning  of  the  session  can  become  a  law.  A 
tendency  to  discourage  frequent  sessions  is  also  shown  by 
the  fact  that  within  the  last  ten  years,  in  at  least  six 
States,  annual  sessions   have  been   changed  to   biennial, 


38  American  State  Constitutions. 

which  a  large   majority  of  the  State  constitutions  now 
prescribe. 

A  novel  restriction  upon  the  Legislature  in  the  matter 
of  appropriations  was  added  to  the  Missouri  constitution 
in  1875.  This  provides  (Art.  IV,  Sec.  43)  that  all  State 
revenue  from  every  source  shall  go  directly  into  the 
treasury,  and  the  General  Assembly  shall  have  no  power 
to  divert  the  same  or  permit  money  to  be  drawn  there- 
from except  in  pursuance  of  regular  appropriations  made 
by  law.  It  is  then  prescribed  that  all  appropriations  of 
money  shall  be  made  by  the  General  Assembly  in  the 
following  order  of  priority :  firsts  to  pay  all  interest  upon 
the  State  debt  falling  due  during  its  term  of  office  ;  second, 
two  hundred  and  fifty  thousand  dollars  annually  for  the 
sinking  fund ;  third,  for  free  public-school  purposes  •  * 
fourth,  the  cost  of  assessing  and  collecting  the  revenue ; 
fifth,  the  payment  of  the  civil  list ;  sixth,  the  support  of 
the  eleemosynary  institutions  of  the  State ;  and  seventh, 
for  the  pay  of  the  General  Assembly,  and  such  other 
purposes,  not  prohibited  by  the  constitution,  as  it  may 
deem  necessary ;  and  the  General  Assembly  is  forbidden 
to  appropriate  money  for  any  purpose  until  these  appro- 
priations have  been  made,  in  the  order  specified,  or  to 
change  the  prescribed  priority  of  any  item. 

These  are  some  of  the  limitations  imposed,  of  late 
years,  upon  the  law-making  power.  As  to  their  wisdom,, 
I  have  nothing  to. say.  The  significant  fact  is,  that  they 
are  imposed  by  the  people  upon  their  chosen  representa- 
tives  as  part  of  the  organic  law. 

What  conclusion  are  we  to  draw  from  such  limitations  ? 


American  State  Constitutions.  39 

It  may  be  that  the  sceptic  of  popular  institutions  would 
point  to  them  as  proof  that  the  people  of  these  States,, 
conscious  of  the  decay  of  public  virtue,  have  already 
come  to  distrust  themselves  in  the  persons  of  their  rep- 
resentatives. But  no  such  conclusion  would  follow,  I 
think,  upon  a  fair  consideration  either  of  the  purpose  or 
the  effect  of  such  constitutional  provisions. 

Restrictions  upon  the  passage  of  special  laws  in  respect 
of  matters  of  merely  local  or  individual  concern,  in  cases 
to  which  general  laws  may  be  made  applicable,  are  of 
manifest  advantage  to  the  community ;  not  only  on 
account  of  the  great  saving  in  time,  labor,  and  expense 
of  legislation  thus  accomplished,  but  for  other  reasons. 
They  provide  uniform  methods  of  administration  in  local 
matters  :  which,  under  like  circumstances,  is  obviously 
desirable,  since  general  laws  upon  such  subjects  are  likely 
to  be  enacted  with  more  circumspection,  and  defects  in 
their  working  are  more  likely  to  be  observed  and  reme- 
died, while  unity  and  simplicity  in  the  general  body  of 
administrative  law  is  preserved.  General  and  uniform 
laws,  framed  with  due  care  and  foresight,  authorizing  the 
formation  of  private  corporations  upon  compliance  with 
reasonable  and  prescribed  conditions,  while  they  promote 
and  facilitate  the  aggregation  and  employment  of  capital 
in  many  enterprises  of  private  and  public  benefit  whose 
prosecution  would  often  be  needlessly  impeded  by  the 
necessity  of  applying  to  the  Legislature  for  a  special 
charter,  also  prevent  the  obtaining  of  special  privileges 
and  exemptions  without  adequate  return  therefor  to  the 
community.     And  so  of  other  restrictions  upon  the  law- 


UNIVERSITl 


^IFORNJt;^ 


40  American  State  Constitutions. 

making  power,  already  mentioned, — which  may  well  be 
considered,  not  as  evidencing  a  distrust  of  popular  insti- 
tutions, but  rather  as  additional  precautions  taken  by  the 
people  themselves  against  dangers  confessedly  inherent  in 
them, — or  rather,  in  human  nature  itself. 

Fifty  years  ago,  De  Tocqueville,  an  ardent  friend  of 
popular  institutions,  pointed  out  that  the  greatest  danger 
of  the  American  republics  proceeded  from  "  the  unlimited 
power  of  the  majority,  which,"  he  adds,  "may  at  some, 
future  time  urge  the  minorities  to  desperation,  and  oblige 
them  to  have  recourse  to  physical  force."  In  support  of 
this,  he  cites  both  Hamilton  and  Jefferson, — the  latter,  as 
being  ''  the  most  powerful  advocate  democracy  has  ever 
sent  forth  "  ;  and  quotes  from  a  letter  of  Jefferson  to 
Madison,  in  1789,  the  following  words  : 

"  The  executive  power  of  our  government  is  npt  the  only, 
perhaps  not  even  the  principal,  object  of  my  solicitude.  The 
tyranny  of  the  Legislature  is  really  the  danger  most  to  be  feared 
and  will  continue  to  be  so  for  many  years  to  come." 

Another  class  of  comparatively  recent  provisions  in 
State  constitutions  consists  of  positive  enactments,  such 
as  we  should  hardly  expect  to  find  in  the  organic  law. 

Such  are  provisions  fixing  at  specified  sums  the  salaries 
of  State  officers  ;  limiting  the  rate  of  interest,  legal  and 
conventional ;  exempting  certain  property  from  levy  on 
execution  ;  prescribing  details  of  practice  in  the  courts  ; 
constitutional  enactments  concerning  the  property  of 
married  women,  which,  in  several  States,  provide,  what 
is  quite  as  effectively  done  by  statute  in  others, — that  the 


American  State  Constitutions.  41 

property  of  a  woman  held  before  marriage  or  acquired 
after  her  marriage  by  gift,  grant,  devise,  or  descent,  shall 
remain  absolutely  her  own.  In  Missouri,  the  reception 
of  deposits  by  a  bank  in  failing  circumstances  is  declared 
a  crime  on  the  part  of  directors  cognizant  thereof,  who 
are  also  made  civilly  liable  for  the  same.  The  California 
constitution  of  1879  prescribes  eight  hours  as  a  legal 
day's  work  on  all  public  works ;  and  in  terms  creates,  in 
favor  of  mechanics,  material-men,  and  laborers,  a  lien 
upon  the  property  on  which  they  have  furnished  material 
or  labor,  though  leaving  the  enforcement  of  such  lien  to 
the  Legislature. 

Numerous  other  illustrations  of  this  tendency  might  be 
mentioned.  Perhaps  the  most  notable  one  is  the  adop- 
tion of  what  are  known  as  prohibition  amendments  ;  as, 
in  Kansas,  in  1880,  Iowa  in  1882,  Maine  in  1884,  and 
Rhode  Island  in  1886;  while  in  other  States  like  amend- 
ments are  now  being  vigorously  urged. 

It  would  ill  become  me,  on  this  occasion,  to  discuss  the 
merits  of  such  legislation.  The  only  inquiry  now  sug- 
gested is, — why  it  should  find  a  place  in  the  constitution, 
especially  since  both  State  and  Federal  courts  have  upheld 
such  statutes  as  constitutional  under  the  police  power  of 
the  States,  and  a  prohibitory  liquor  law  has  been  on  the 
statute-books  of  Maine  for  many  years  past. 

This  inquiry  is  a  very  important  one.  It  involves  the 
true  scope  and  office  of  the  constitution  itself.  As  to 
this,  Judge  Cooley  says  (Const.  Lim.,  p.  3) : 

"  In  American  constitutional  law,  the  word  constitution  is 


42  American  State  Constitutions. 

used  in  a  restricted  sense,  as  implying  the  written  instrument 
agreed  upon  by  the  people  of  the  Union,  or  of  any  one  of  the 
States,  as  the  absolute  rule  of  action  and  decision  for  all  de- 
partments and  officers  of  the  government,  in  respect  to  all 
points  covered  by  it,  which  must  control  until  it  shall  be 
changed  by  the  authority  which  established  it,  and  in  opposi- 
tion to  which  any  act  or  regulation  of  any  such  department  or 
officer,  or  even  of  the  people  themselves,  will  be  altogether 
void." 

This  is  not  the  only  function  of  a  constitution  under  a 
free  government.  It  fulfils  a  still  more  important  ofifice, 
in  declaring  those  natural  and  fundamental  rights  of  in- 
dividuals for  the  security  and  common  enjoyment  of 
which  governments  are  established.  To  the  end  that 
those  rights  may  be  so  enjoyed  and  protected,  such  a  con- 
stitution, or  the  laws  enacted  in  pursuance  thereof,  may 
control  their  exercise  by  individuals  ;  and,  to  such  extent 
as  the  common  good  shall  require,  may  prescribe  the 
mode  of  their  enjoyment.  But  those  rights  are  not  de- 
rived from  nor  measured  by  the  constitution.  It  does 
measure  and  limit  the  powers  of  the  officers  to  whom  is 
committed  the  duty  of  protecting  and  enforcing  them  ; 
and  it  is  to  this  view  of  an  American  State  constitution 
that  the  description  above  quoted  applies. 

In  this  sense  a  State  constitution  is  properly  called  an 
organic  law, — the  fundamental  law  pursuant  to  which  the 
State  government  is  permanently  organized  and  con- 
ducted. It  is  not  a  code,  civil  or  penal ;  and  whatever 
tends  to  turn  it  into  one,  endangers  its  ultimate  stability 
by  exposing  it  to  every  gust  of  popular  excitement  or 


American  State  Constitutions.  43 

caprice.  The  difference  between  putting  into  a  State 
constitution,  and  prescribing  by  a  statute,  a  rule  of  con- 
duct affecting  individuals  alone,  is  that  the  latter  can  be 
repealed  by  the  next  Legislature,  while  the  former  cannot. 
But  to  put  into  the  constitution,  for  that  reason^  a  rule 
which  a  statute  would  sufificiently  prescribe,  and  which 
must  be  supplemented  by  a  statute  to  make  it  effective, 
would  be  simply  to  take  advantage  of  the  greater  per- 
manency of  the  organic  law  in  the  interest  of  a  majority 
— perhaps  a  merely  apparent  or  temporary  majority, — for 
a  purpose  quite  foreign  to  the  purpose  of  that  instru- 
ment ;  and  might  well  argue  a  distrust,  on  the  part  of  that 
majority,  of  their  ability  to  maintain  their  ground  in  the 
convictions  of  the  people.  If  this  be  the  significance  of 
constitutional  provisions  such  as  I  have  mentioned,  it  is 
not  an  encouraging  sign.  It  would  exemplify  that  tyran- 
ny of  the  majority  which  the  friends,  as  well  as  the  foes, 
of  democratic  institutions  concede  to  be  their  greatest 
inherent  danger. 

Indeed,  the  experience  of  the  good  people  of  your  own 
State  shows,  that  even  in  respect  of  one  of  those  funda- 
mental rights  already  referred  to,  a  constitutional  guaranty 
may  be  safely  dispensed  with,  so  long  as  such  right  is  de- 
clared and  enforced  by  a  statute,  which  is  upheld  by  the 
general  sentiment  of  the  people.  Neither  the  present 
nor  any  former  constitution  of  the  State  of  New  York 
contains  that  prohibition  of  "  unreasonable  searches  and 
seizures,"  and  of  the  issue  of  search  warrants  except  upon 
probable  cause,  supported  by  oath  or  affirmation,  which 
is  found   in  the  constitution  of  every  other  American 


44  American  State  Constitutions. 

State,  and  was  adopted  as  the  fourth  amendment  to  the 
Federal  Constitution.  Such  a  declaration  is  found,  how- 
ever (in  language  identical  with  the  amendment  last  men- 
tioned), in  the  Bill  of  Rights,  enacted  as  a  statute  in  this 
State,  in  1787  ;  and  is  enforced  by  statutory  requirements 
touching  the  issue  and  service  of  search  warrants  which 
yield  in  strictness  to  no  others. 

Other  classes  of  novel  and  highly  important  provisions 
in  American  State  constitutions  consist  of  those  which 
relate  to  private  corporations  and  quasi  public  corpora- 
tions, and  also,  in  one  State,  to  public  warehouses.  Of 
such  provisions,  those  adopted  in  Illinois  in  1870,  Penn- 
sylvania in  1873,  Missouri  in  1875,  and  California  in  1879, 
furnish  the  most  notable  examples,  though  some  are 
found  in  other  States. 

Of  those  relating  to  corporations,  some,  already  noted, 
prohibit  their  creation  except  by  general  laws,  subject  to 
repeal  or  amendment  ;  others  forbid  the  granting  to  them 
of  exclusive  privileges  ;  others  limit  their  duration,  and 
their  power  to  hold  real  estate.  Others  prescribe  specific 
rules  for  the  conduct  of  corporate  business,  as  in  respect 
of  the  issue  or  increase  of  their  stock  or  bonded  indebted- 
ness, or  the  manner  of  electing  their  officers,  or  the  indi- 
vidual liability  of  stockholders  for  corporate  debts. 

Those  relating  to  railroads  and  other  carriers,  and  to 
public  warehousemen,  are  even  more  significant  of  the 
vast  development  of  our  industrial  civilization,  the  changes 
in  means  and  modes  of  transportation,  the  enormous  in- 
crease in  the  internal  commerce  of  the  nation,  and  the 
new  problems  which  we  are  called  upon  to  meet  as  well 


American  State  Constitutions.  45 

as  the  controversies  to  which  they  have  given  rise.  The 
novelty,  the  vast  importance,  and  the  significance  of  the 
facts  from  which  have  resulted  constitutional  provisions 
like  these,  are  thus  forcibly  stated  in  the  opening  para- 
graphs of  Professor  Hadley's  very  valuable  work  on  Rail- 
road Transportation. 

On  the  fourth  of  July,  1828,  Charles  Carroll,  last  surviving 
signer  of  the  Declaration  of  Independence,  laid  the  first  rail  of 
the  Baltimore  and  Ohio  Railroad.  One  man's  life  formed  the 
connecting  link  between  the  political  revolution  of  the  last  cen- 
tury and  the  industrial  revolution  of  the  present.  The  second 
reaches  wider  and  deeper  than  the  first.  Yet  there  are  few  who 
realize  its  full  importance  or  who  seriously  try  to  understand 
it.  A  new  system  of  commercial  and  social  relations  has  arisen 
among  us.  .  .  .  Of  these  changes  the  railroad  is  at  once 
an  instrument  and  an  example.  ...  No  one  symptom  in 
business  or  in  politics  marks  the  direction  of  national  activity 
so  clearly  as  does  the  way  in  which  the  transportation  system 
is  organized  and  controlled. 

Of  these  provisions,  some  define  the  relations  of  rail- 
roads to  the  State  and  its  people,  declaring  them  public 
highways  and  common  carriers,  and  as  such  subject  to 
legislative  control ;  others  forbid  discriminations  in  rates 
of  freight  or  tolls,  and  the  consolidation  of  parallel  or 
competing  lines,  and  prescribe  conditions  of  consolida- 
tion in  other  cases  ;  others  forbid  any  officer  or  agent  of 
a  railroad  company  to  be  interested  in  furnishing  material 
or  supplies  to  such  company,  or  in  the  business  of  trans- 
portation as  a  common  carrier  of  freight  or  passengers 
over  its  lines ;  others  forbid  the  granting  of  free  passes  to. 


46  American  State  Constitiitions. 

State  or  municipal  officers,  or  members  of  the  General 
Assembly.  In  eight  States  every  railroad  is  required  by 
the  constitution  to  permit  any  other  railroad  to  cross  or 
connect  with  its  tracks,  and  in  two  States  a  Board  of  Rail- 
road Commissioners  is  established  by  the  constitution, 
while  in  others  such  boards  have  been  created  by  statutes. 
Such  provisions,  and  others  which  I  need  not  detail, 
sufficiently  indicate  the  deep  hold  which  these  questions 
have  taken  upon  the  public  mind,  and  the  tendency  of 
American  legislation.  They  proclaim  the  advent  of  a 
new  era,  the  emergence  in  the  national  life  of  new  ques- 
tions, vitally  affecting  every  interest  and  every  class. 
Von  Hoist  remarks  upon  the  curious  fact  that  just  as 
the  United  States  are  about  to  commence  the  second 
century  of  their  life  as  an  independent  commonwealth, 
and  as  a  republic, — 

— at  the  same  time,  they  evidently  are  entering  upon  a  new- 
phase  of  their  political  development.  The  era  of  buoyant 
youth  is  coming  to  a  close  ;  ripe  and  sober  manhood  is  to  take 
its  place. 

Upon  the  just  solution  of  such  questions  as  these  must 
depend,  in  part  at  least,  the  continuance  of  that  life.  No 
solution  of  them  can  be  permanent  or  safe  unless  it  be 
also  just  to  every  interest  affected.  To  reach  that  solu- 
tion will  tax  the  highest  resources  of  American  statesman- 
ship. Still  more  will  it  demand  from  the  people  them- 
selves that  moderation,  that  self-control,  which  shall 
resist  alike  the  schemes  of  selfish  interest,  the  arts  of 
the  demagogue,  and  the  clamors  of  faction. 


American  State  Constitutions,  47 

Shall  we  despair,  then,  because  those  questions  are  grave 
and  difficult,  and  those  interests  apparently  conflicting? 

Shall  not  this  people,  entering  upon  its  ripe  and  sober 
manhood,  looking  back  upon  its  lately  turbulent  youth, 
still  hold  to  that  faith  which  the  laureate  sang  in  earlier 
days  ? — that  faith  in 

Men,  our  brothers,  men,  the  workers,  ever  reaping  something  new  ; 
That  which  they  have  done  but  earnest  of  the  things  that  they  shall  do  ? 

Shall  it  not  still  be  true  of  this  land,  that — 

There  the  common  sense  of  most  shall  hold  a  fretful  realm  in  awe, 
And  the  kindly  earth  shall  slumber,  lapt  in  universal  law  ! 

May  I  ask  your  indulgence  for  the  mention  of  one 
other  class  of  changes  in  American  State  constitutions, 
scarcely  less  important  in  their  possible  effect  upon  the 
tendency  and  the  future  of  American  institutions  than 
those  relating  to  the  right  of  suffrage  itself.  I  refer  to 
the  changes  in  the  mode  of  appointing  judges  in  many  of 
the  States. 

How  great  those  changes  have  been  will  best  appear 
from  a  brief  comparison  of  the  constitutional  provisions 
on  this  subject  in  force  in  the  year  1800  with  those  which 
exist  to-day. 

In  1800  there  were  fifteen  States  in  this  Union,  Ken- 
tucky and  Tennessee  having  been  admitted  respectively 
in  1792  and  1796.  In  no  one  of  those  States  were  judges 
then  elected  by  the  people.  In  Delaware,  they  were  ap- 
pointed by  the  Governor  alone  ;  in  New  Jersey,  by  the 
Council  alone  ;  in  seven  States — Vermont,  Rhode  Island, 
North  Carolina,  South  Carolina,  Virginia,  Tennessee,  and 


48  American  State  Constitutions, 

Georgia — by  the  Legislature.  In  the  remaining  six  States,, 
they  were  appointed  by  the  Governor  (in  Pennsylvania 
then  styled  the  President),  but  confirmed  by  some  ad-^ 
visory  body,  which  in  Connecticut  was  the  General  Court, 
in  Kentucky  the  Senate,  and  in  Massachusetts,  Maryland, 
Pennsylvania,  and  New  York  the  Council.  In  twelve 
States,  the  judicial  tenure  of  office  was  during  good  be- 
havior. In  New  Jersey  they  were  elected  by  the  Council 
for  seven  years ;  in  Vermont  by  the  Legislature  in  joint 
committee,  annually  ;  while  in  Georgia  the  judges  of  the 
Supreme  Court  were  appointed  by  the  Legislature  for 
three  years,  but  those  of  the  inferior  courts  during  good 
behavior. 

In  1886,  the  constitutional  provisions  on  that  subject 
are  as  follows  : 

In  twenty-three  States  all  judicial  officers  are  elected 
by  popular  vote.  In  Connecticut,  the  judges  of  probate 
courts  are  so  elected,  and  in  Louisiana  those  of  the  dis- 
trict courts.  In  five,  the  judges  are  still  elected  by  the 
Legislature,  this  mode  of  appointment  never  having  been 
abandoned  in  Rhode  Island,  South  Carolina,  and  Ver- 
mont, and  the  States  of  Virginia  and  Georgia  having 
recently  returned  to  it.  In  the  remaining  eight  States 
the  judges  are  appointed  by  the  Governor,  subject  to 
confirmation  either  by  the  Council,  as  in  Maine,  Massa- 
chusetts, and  New  Hampshire,  or  by  the  Senate,  as  in 
Florida,  Louisiana  (as  to  Supreme  judges  only),  Missis- 
sippi, and  New  Jersey  ;  or  by  the  General  Assembly,  as  in 
Connecticut  (since  1880),  as  to  the  judges  of  the  Supreme, 
and  Superior  Courts. 


American  State  Coftstitutions.  49 

It  would  be  a  mistake,  however,  to  suppose  that  during 
this  entire  period,  and  especially  during  recent  years,  the 
drift  has  always  been  in  one  direction.  Such  has  been 
the  fact,  on  the  whole,  as  we  have  seen,  in  respect  of  the 
right  of  suffrage  ;  for  the  educational  qualifications  re- 
quired in  two  States,  and  apparently  contemplated  in  two 
more,  not  only  do  not  conflict  with  the  democratic  theory 
of  government,  but  are  its  most  logical  expression.  They 
only  put  in  practice  the  doctrine  as  to  the  necessity  of 
popular  education  which  nearly  every  State  constitution 
declares,  and  upon  which  alone  the  taxes  for  the  support 
of  free  public  schools  can  be  justified.  But  as  to  the 
mode  of  judicial  appointments,  the  history  of  the  changes 
made  from  time  to  time  shows,  I  think,  that  the  experi- 
ment is  still  in  progress,  that  public  opinion  in  regard  to 
it  has  fluctuated  and  is  still  fluctuating,  that  in  some 
States  it  has  been  abandoned,  and  that,  even  where  it 
prevails,  grave  doubts  exist  as  to  its  wisdom  and  its  ulti- 
mate results. 

May  I  still  further  presume  upon  your  patience  in 
briefly  stating  some  facts  from  which  these  conclusions 
are  drawn  ? 

The  first  departure  from  the  old  system  was  made  in 
Georgia,  in  1812,  when  an  amendment  to  the  constitution 
(made  by  the  Legislature  and  not  submitted  to  the  peo- 
ple), provided  that  the  justices  of  the  inferior  or  county 
courts  should  be  elected  for  a  term  of  four  years  by  the 
people  of  each  county  qualified  to  vote  for  representa- 
tives, the  judges  of  the  Superior  Court  being  still  elected 
by  the  Legislature.     In  18 16  Indiana  was  admitted  into 


50  American  State  Constitutions. 

the  Union,  under  a  constitution  providing  a  curiously 
mixed  system  of  judicial  appointments;  the  Supreme 
Court  judges  being  appointed  by  the  Governor  and  con- 
firmed by  the  Senate,  the  presidents  of  the  Circuit  Courts 
being  elected  by  the  General  Assembly  on  joint  ballot, 
and  the  associate  judges  of  the  Circuit  Courts  elected  by 
the  people  of  the  several  counties — the  terms  of  all  judges 
being  seven  years. 

No  other  change  took  place  in  any  State  until  1832, 
when  Mississippi  adopted  her  second  constitution, — the 
first,  adopted  in  18 17,  having  provided  for  the  election  of 
judges  by  the  Legislature.  Under  this  all  judges  were 
elected  by  the  people,  those  of  the  Court  of  Errors  and 
the  Chancellor  for  six  years,  and  the  Circuit  judges  for 
four  years.  In  1835  Michigan  was  admitted,  with  a  con- 
stitution under  which  the  judges  of  the  Supreme  Court 
were  nominated  by  the  Governor  and  confirmed  by  the 
Senate,  for  seven  years,  the  inferior  judges  being  elected 
for  four  years  by  the  people  of  each  county. 

In  1839,  the  constitution  of  Maine  was  amended  by 
limiting  all  judicial  terms  to  seven  years,  but  the  appoint- 
ment of  judges  remained  with  the  Governor  and  Council, 
as  provided  in  its  first  constitution  of  1820. 

In  May,  1846,  a  convention  met  in  Iowa,  which  framed 
its  first  constitution,  submitted  to  the  people  in  August 
following,  and  ratified  by  a  majority  of  about  450  votes 
out  of  18,000.  In  June,  1846,  a  constitutional  conven- 
tion met  in  this  city  and  framed  a  new  constitution  for 
New  York,  which  was  ratified  in  November,  1846,  by  a 
great  majority.     Both  these  constitutions  made  all  judges 


American  State  Constitutions.  51 

elective  by  the  people.  In  Iowa,  the  term  of  the  Supreme 
Court  judges  was  six  years,  that  of  the  district  judges 
four  years.  In  New  York,  the  judges  of  the  Court  of 
Errors  and  of  the  Supreme  Court  were  all  to  be  elected 
for  eight  years  ;  the  former  at  large,  the  latter  by  districts. 

The  example  thus  set  was  contagious.  Within  the 
next  four  years,  eleven  other  States — Illinois,  Wisconsin, 
Arkansas  (in  part),  California,  Pennsylvania,  Missouri, 
Virginia,  Alabama  (in  part),  Connecticut  (in  part),  Ken- 
tucky, and  Michigan — adopted,  in  whole  or  in  part,  the 
method  of  popular  election  of  judges;  some  by  constitu- 
tional amendment,  others  in  first  or  in  revised  constitu- 
tions— though  in  some  with  signs  of  hesitation.  In 
Alabama  and  Arkansas  the  Chancellor  and  judges  of  the 
Supreme  Court,  and  in  Connecticut  the  judges  of  the 
Supreme  and  Superior  courts,  were  still  chosen  by  the 
Legislature.  In  Missouri,  the  first  step,  in  1848,  was  to 
change  the  terms  of  office  of  the  Supreme  and  Circuit 
judges  respectively  from  good  behavior  to  twelve  and 
eight  years,  still  leaving  their  appointment  to  the  Gov- 
ernor and  Senate  ;  but  in  1850  another  amendment  to 
the  constitution  made  all  judges  elective  by  the  people 
for  a  term  of  six  years. 

Between  1850  and  i860  nine  more  States — Ohio, 
Indiana,  Maryland,  Louisiana,  Tennessee,  Maine,  Minne- 
sota, Oregon,  and  Kansas,  the  last  three  in  first  constitu- 
tions, the  others  by  amendment  or  revision — adopted  the 
elective  system,  in  whole  or  in  part ;  though  in  Maine 
only  as  to  Probate  judges,  all  others  being  still  appointed 
by  the  Governor  and  confirmed  by  the  Council. 


52  American  State  Constitutions. 

In  i860,  therefore,  the  plan  of  electing  judges  by  the 
people  had  been  introduced,  to  a  greater  or  less  extent, 
in  twenty-four  out  of  the  thirty-four  States  then  compos- 
ing the  Union ;  though  in  five  of  these, — Alabama, 
Arkansas,  Connecticut,  Georgia,  and  Maine, — the  change 
affected  only  the  judges  of  inferior  courts ;  judges  of  the 
superior  courts  being  still  appointed  in  Maine  by  the 
Governor  and  Senate,  and  in  the  other  four  by  the  Legis- 
lature. But  with  the  decade  ending  in  i860,  this  tendency 
seems  to  have  reached  its  maximum,  though  its  force  was 
not  yet  spent.  After  i860,  the  first  constitutions  of 
West  Virginia,  admitted  in  1863,  of  Nevada  in  1864,  of 
Nebraska  in  1866,  and  Colorado  in  1876,  made  all  judges 
elective ;  as  did  also  the  revised  constitutions  of  Florida 
in  1865,  of  Texas  in  1866,  and  of  North  Carolina  in  1868. 

But  other  changes  have  taken  place  since  i860  which  in- 
dicate an  opposite  tendency, — either  in  the  lengthening 
of  judicial  terms  in  States  still  retaining  the  elective 
system,  or  in  the  abandonment  of  that  system  by  some 
States. 

Thus,  in  New  York,  by  the  amendment  of  1869,  the 
judicial  term  (except  in  the  county  courts)  was  lengthened 
from  eight  to  fourteen  years  ;  though  at  the  same  election 
a  separate  proposition  to  return  to  the  former  mode  of 
appointment,  by  the  Governor  and  Senate,  was  rejected 
by  a  large  majority.  In  Pennsylvania,  by  the  new  con- 
stitution of  1873,  the  term  was  lengthened  from  fifteen 
to  twenty-one  years  for  Supreme  judges,  and  from  five  to 
ten  years  for  other  judges.  In  Missouri,  the  term  of 
Supreme  Court  judges  was  lengthened,  in  1875,  from  six 
to  ten  years,  and  that  of  the  judges  of  two  intermediate 


American  State  Constitutions.  53 

appellate  courts,  more  recently  created,  was  made  twelve 
years;  in  Ohio,  where  since  185 1  the  constitutional  term 
was  five  years,  the  Legislature  were  authorized  in  1883  to  fix 
any  term  7iot  less  than  five  years  ;  in  California,  the  term  of 
Supreme  Court  judges  was  changed  from  ten  to  twelve 
years;  in  Maryland,  that  of  all  judges  from  ten  to  fifteen 
years. 

On  the  other  hand,  Virginia,  by  the  new  constitution 
of  1864,  and  also  by  that  adopted  in  1870  (amended  in 
•other  respects  in  1872,  1874  and  1876),  has  abandoned 
the  system  of  popular  election  and  returned  to  that  of 
legislative  election  on  joint  ballot. 

Louisiana,  by  the  constitution  of  1864,  provided  for  the 
appointment  of  all  judges  by  the  Governor,  and  by  that 
of  1868,  for  the  appointment  of  the  Supreme  Court  judges 
by  the  Governor  and  Senate,  the  district  judges  being 
again  elected  by  the  people.  Mississippi,  in  1868,  aban- 
doned the  elective  system  entirely,  all  judges  being  now 
appointed  by  the  Governor  and  confirmed  by  the  Senate. 
By  the  Texas  constitution  of  1868,  all  judges  were  to  be 
appointed  by  the  Governor  and  Senate,  though  in  1876 
that  State  returned  to  popular  elections.  Florida  by  the 
•constitution  of  1868,  amended  in  other  particulars  in  1870 
and  1875,  abandoned  the  elective  system,  all  judges  being 
now  appointed  by  the  Governor  and  confirmed  by  the 
Senate.  The  Illinois  constitution  of  1870,  while  retain- 
ing the  elective  system  generally,  contains  the  anomalous 
provision  that  in  Chicago,  all  justices  of  the  peace  shall 
be  appointed  by  the  Governor  and  confirmed  by  the 
Senate,  but  only  upon  the  recommendation  of  a  majority 
of    the    judges   of    the    Circuit,    Superior,   and    County 


54  American  State  Constitutions. 

courts ;  such  justices  elsewhere  throughout  the  State  being- 
elected  by  the  people.  Maine  in  1876  returned  to  the 
plan  of  appointing  all  judges  by  the  Governor  and  Council ; 
and  Connecticut,  by  the  amendment  of  1880,  provided 
that  the  judges  of  the  Supreme  and  Superior  courts 
should  be  nominated  by  the  Governor,  and  confirmed 
by  the  General  Assembly.  And  although  during  the  ten 
years  ending  with  November,  1886,  revised  constitutions 
have  been  adopted  in  three  States,  and  numerous  con- 
stitutional amendments  on  many  different  subjects  in 
twenty-five  States,  no  changes  have  been  made  in  the 
mode  of  judicial  appointment  except  those  already  men~ 
tioned.  No  State  which  had  not  already  adopted  the 
elective  system  has  adopted  it  during  that  period. 

It  would  be  unbecoming,  in  this  presence,  to  dwell 
upon  the  supreme  importance,  under  popular  institutions, 
of  securing  an  independent  as  well  as  a  learned  and  able 
judiciary.  But  I  venture  to  think,  in  view  of  the  facts 
already  stated,  that  the  best  mode  of  securing  that  result 
is  still  an  open  question,  and  one  which  must  continue 
to  receive,  as  it  unquestionably  demands,  the  most 
anxious  consideration.  It  is  too  much  to  hope  that  any 
mode  of  judicial  appointment  can  be  devised,  human 
nature  being  what  it  is,  which  shall  ensure  the  best  pos- 
sible results  under  all  circumstances  and  in  every  case. 
As  between  the  several  modes  of  judicial  appointment 
already  mentioned,  the  real  question  is, — which  of  them^ 
on  the  whole,  will  probably  best  endure  the  strain  to 
which  in  some  form  or  other  it  must  be  subjected,  and 
which,  sooner  or  later  will  surely  find  out  where  its  weak- 


American  State  Constitutions.  55 

ness  IS.  If  the  discussion  of  that  question  were  within 
the  scope  of  these  observations,  the  most  weighty  reasons 
could  be  given,  as  I  think,  in  favor  of  the  appointment 
of  all  judicial  officers  by  the  Executive,  subject  to  con- 
firmation by  a  Council  or  Senate,  to  hold  office  during 
good  behavior;  the  ancient  mode,  which  still  prevails 
under  the  Federal  Constitution,  and  in  eight  States, 
some  of  which,  as  we  have  seen,  have  in  late  years  re- 
turned to  it.  Experience  furnishes  the  weightiest  of 
those  reasons.  That  system  has  not  been  a  failure  which 
enriched  modern  jurisprudence  with  the  labors  of  Kent, 
of  Marshall,  of  Story,  and  of  Shaw.  The  dangers  attend- 
ing the  election  of  judges  by  the  Legislature  were  briefly 
but  forcibly  referred  to  in  the  Address  of  Mr.  Justice 
Miller  before  your  Association  a  few  years  ago.  That 
mode  is  generally  conceded,  I  think,  to  be  open  to  more 
serious  objections  than  either  of  the  others. 

But  there  is  one  consideration  which  seems  to  me  of  the 
greatest  moment,  in  reference  to  the  election  of  judges  by 
popular  vote ;  all  the  more,  in  view  of  that  specious  plea 
sometimes  urged  in  its  favor,  that  since  this  is  a  represent- 
ative popular  government,  and  all  who  hold  public  office 
are  the  servants  of  the  people,  judicial  officers  should  be 
elected  in  like  manner  with  those  whose  functions  are  repre- 
sentative or  executive.  The  obvious  answer  is,  that  not 
only  is  a  judicial  office  in  no  sense  a  representative  one, 
but  just  so  far  as  its  incumbent  becomes,  or  is  in  danger 
of  becoming,  the  representative  of  any  person,  or  measure, 
or  party,  so  far  he  becomes  unfitted  to  hold  it.  But  the 
consideration  to  which  I  allude  lies  deeper  than  that. 


■56  American  State  Constitutions. 

Some  of  the  most  impressive  observations  made  by 
De  Tocqueville  upon  the  probable  future  of  American  in- 
stitutions relate  to  the  functions  of  the  judiciary,  and 
especially  to  what  he  justly  describes  as  "  the  immense 
political  power  "  entrusted  to  American  courts  of  justice, 
in  the  right,  elsewhere  unknown,  of  indirectly  nullifying 
legislative  action  by  denying  its  validity  on  constitutional 
grounds.  But  this  power,  as  he  points  out,  can  be  exer- 
cised only  for  the  purposes  of  the  case  actually  before  the 
court ;  and  he  adds  : 

If  the  judge  had  been  empowered  to  contest  the  laws  on 
the  ground  of  theoretical  generalities,  if  he  had  been  enabled 
to  open  an  attack  or  to  pass  a  censure  on  the  legislator,  he 
would  have  played  a  prominent  part  in  the  political  sphere  ; 
and  as  the  champion  or  the  antagonist  of  a  party,  he  would 
have  arrayed  the  hostile  passions  of  the  nation  in  the  conflict. 
.  .  .  But  the  American  judge  is  brought  into  the  politi- 
cal arena  independently  of  his  own  will.  He  only  judges  the 
law  because  he  is  obliged  to  judge  a  case. 

I  would  gladly  quote,  if  time  permitted,  his  further 
comments  upon  this  unique  and  most  important  feature 
of  our  system,  but  can  only  give  his  conclusion,  as  fol- 
lows : 

Within  these  limits,  the  power  vested  in  the  American 
courts  of  justice,  of  pronouncing  a  statute  to  be  unconstitution- 
al, forms  one  of  the  most  powerful  barriers  which  has  ever 
been  devised  against  the  tyranny  of  political  assemblies. 

I  need  not  remind  you  of  the  luminous  and  conclusive 
reasoning  of  Chief-Justice  Marshall,  in  Marbury  vs,  Madi- 


American  State  Constitutions.  57 

son,  (i  Cranch,  70)  in  1803,  nor  of  the  long  list  of  subse- 
quent decisions  in  State  and  Federal  courts,  affirming  that 
power  in  cases  which  practically  attest  the  value  set  upon 
it  by  our  people.  It  may  be  doubted  if  any  other  feature 
of  our  political  system  would  not  be  sooner  surrendered, 
and  with  good  reason. 

But  when  De  Tocqueville  wrote  those  words,  the  Mis- 
sissippi constitution  of  1832  had  not  been  promulgated. 
The  judges  of  whom  he  spoke  were  not  nominees  of 
political  parties,  supported  or  opposed  as  such  at  com- 
paratively short  intervals,  at  the  same  election  and  on 
the  same  ticket  with  candidates  for  the  Legislature  or 
for  Congress,  nominated  in  like  manner  with  themselves, 
in  the  interest  of  the  same  political  faith  or  the  same 
pending  measures,  but  upon  whose  acts  as  legislators 
they  might  at  any  moment  be  called  judicially  to  pass. 

It  would  be  pertinent,  I  think,  to  an  inquiry  as  to  the 
real  drift  or  significance  of  such  constitutional  changes  in 
these  States,  to  consider  how  far  the  election  of  judges 
by  popular  vote  may  tend  to  weaken,  even  ultimately  to 
destroy,  this  most  important  barrier  against  the  tyranny 
of  majorities,  this  obstacle  (to  repeat  that  felicitous 
phrase),  "  not  in  the  way  of  the  people's  will,  but  of  their 
whim."  Such  an  inquiry  would  reach  far  beyond  imme- 
diate or  visible  results.  It  is  not  answered  by  what  hap- 
pens under  ordinary  circumstances.  Nobody  doubts  that 
the  American  people  desire  pure  and  able  judges,  nor  that 
under  ordinary  circumstances  they  can  and  do  elect  them. 
The  honored  names  which  have  shone  upon  the  roll  of 
your  own  judiciary  during  the  past  forty  years,  and  which 


58  American  State  Constitutions. 

still  adorn  it,  and  such  tributes  as  that  recently  paid  to- 
upright  and  able  judges  at  the  close  of  faithful  service  to 
the  people  of  your  great  city,  demonstrate  that. 

But  the  strength  and  endurance  of  every  political  sys- 
tem and  of  every  device  for  its  security,  like  that  of  a 
steamship  or  any  other  machine,  must  be  measured  by 
that  of  its  weakest  part.  It  is  the  extraordinary  strain, 
not  merely  the  ordinary  one,  which  it  must  meet, — the 
test  of  furious  storms  and  heavy  seas,  as  well  as  the  gentle 
wavelets  of  the  placid  bay,  smiling  in  the  sunshine  of 
popular  content.  In  the  political  history  of  these  States 
many  such  storms  have  arisen,  others  even  more  furious 
may  still  arise.  The  results  of  some  of  them  are  recorded 
in  those  constitutional  amendments  which  we  have  been 
considering.  Such  were  the  controversies  over  the  fugi- 
tive slave  law,  over  the  validity  of  municipal  and  county 
bonds  issued  in  aid  of  railroads,  over  the  granger  laws,  so- 
called,  within  fifteen  years  past  in  Illinois,  Iowa,  and 
Wisconsin,  over  the  liquor-license  laws  in  Ohio,  over  the 
question  of  compensation  to  interests  affected  by  prohibi- 
tory liquor  laws,  or  by  like  constitutional  amendments. 

Is  there  no  danger,  under  the  system  of  popular  elec- 
tion, that  judges  would  be  nominated,  and  their  election 
secured  or  defeated,  not  exclusively  with  reference  to 
their  ability,  their  learning,  or  their  purity,  but  because 
they  were  supposed  to  represent  or  not  to  represent  the 
views  of  the  political  majority  for  the  time  being  upon 
any  such  controversy  ?  I  am  afraid  that  history  has  al- 
ready answered  that  question. 

In    Professor    Hadley's   important  work  on    Railroad 


American  State  Cojistitutions.  59 

Transportation,  already  mentioned,  is  thus  narrated 
{p.  134),  in  part,  the  earlier  history  of  the  controversy 
over  legislative  control  of  railroad  rates. 

The  first  tangible  results  were  reached  in  Illinois.  The 
constitutional  convention  of  1870  made  an  important  declara- 
tion concerning  State  control  of  rates,  on  the  basis  of  which  a 
law  was  passed,  in  187 1,  establishing  a  system  of  maxima. 
This  law  was  pronounced  unconstitutional  by  Judge  Law- 
rence. The  result  was,  that  he  immediately  afterward  failed 
of  re-election  solely  on  this  ground.  The  defeat  of  Judge  Law- 
rence showed  the  true  significance  of  the  farmers*  movement. 
They  were  concerned  in  securing  what  they  felt  to  be  their 
rights,  and  they  were  unwilling  that  any  constitutional  barriers 
should  be  made  to  defeat  the  popular  will.  They  had  reached 
the  point  where  they  regarded  many  of  the  forms  of  law  as 
mere  technicalities.  They  were  dangerously  near  the  point 
where  revolutions  begin.  But  they  did  not  pass  the  point. 
The  law  of  1873  avoided  the  issue  raised  by  Judge  Lawrence 
against  that  of  187 1.  Instead  of  directly  fixing  maxima,  it 
provided  that  rates  must  be  reasonable,  and  then  further  pro- 
vided for  a  commission  to  fix  reasonable  rates. 

The  merits  of  that  controversy  are  quite  foreign  to  my 
present  purpose.  It  was  finally  determined,  as  to  the 
question  of  constitutional  power,  by  the  United  States 
Supreme  Court,  in  1877  »  but  long  before  that  decision 
was  given,  the  effects  of  such  legislation,  especially  in 
Wisconsin,  were  tested  by  experience.  As  Professor 
Hadley  adds  : 

The  very  men  who  passed  the  law  in  1874  hurriedly  re- 
pealed it  after  two  years*  trial.     In  other  States  the  laws  either 


6o  American  State  Constitutions. 

were  repealed,  as  in  Iowa,  or  were  sparingly  and  cautiously- 
enforced.  By  the  time  the  Supreme  Court  published  the 
"  Granger  decisions  "  the  fight  had  been  settled,  not  by  consti- 
tutional limitations,  but  by  industrial  ones. 

Whatever  other  lessons  events  like  these  may  teach, 
surely  they  have  an  important  bearing  upon  any  inquiry 
into  the  true  significance  of  such  constitutional  changes 
as  those  last  mentioned.  Such  an  inquiry  would  be  inter- 
esting if  it  related  only  to  the  reasons  which  induced 
their  adoption.  It  becomes  a  much  more  momentous 
question  when  it  relates  to  the  ultimate  effect  of  such 
changes  upon  the  real  independence  of  American  judges. 

Mr.  President  and  Gentlemen  : 

The  constitution  of  your  Association,  in  enumerating 
the  objects  for  which  it  was  formed,  assigns  the  first  place 
to  the  cultivation  of  the  science  of  Jurisprudence.  It  is 
the  glory  of  that  science  that  it  is  concerned  with  living 
human  interests,  with  the  rights  and  duties  and  mutual 
relations,  and  therefore  with  the  highest  earthly  interests, 
of  all  civilized  men.  Its  development  not  only  keeps  pace 
with,  but  is  essential  to,  the  true  progress  of  humanity.  But 
it  is  as  true  of  this  as  of  the  sister  sciences  which  deal  with 
inanimate  nature,  that  its  development  can  be  attained 
only  in  the  use  of  scientific  methods ;  by  patiently  col- 
lecting the  facts  of  human  experience,  under  varying 
conditions,  by  the  careful  comparison  and  classification 
of  those  facts,  and  by  deducing  from  them  those  general 
rules  and  principles  for  the  regulation  of  human  conduct,. 


American  State  Constitutions,  6r 

the  knowledge  and  application  of  which  distinguish  the 
scientific  man  from  the  sciolist,  the  jurist  from  the  case- 
lawyer.  Its  highest  results  are  to  be  reached  through 
the  study  of  comparative  jurisprudence,  increasingly 
characteristic  of  our  times.  Surely  there  is  no  more  in- 
viting field  for  that  study,  none  which  promises  a  richer 
harvest,  than  that  which  is  offered  to  us  in  the  laws  and 
constitutions  of  these  American  States, — one  and  yet 
many,  kindred  and  yet  diverse,  within  whose  busy  bor- 
ders are  found  representatives  of  every  race,  of  every  in- 
dustrial Interest,  of  every  shade  of  human  belief,  every 
stage  of  human  thought.  The  existence,  much  more  the 
past  labors,  of  your  Association,  and  the  important  sub- 
jects which  you  have  discussed,  together  with  the  activity 
of  similar  Associations  in  many  other  States,  afford  gratify- 
ing evidence  that  the  American  Bar  is  not  unmindful  of 
its  great  opportunity. 

To  this  great  work  it  is  the  privilege  of  each  one  of 
us  in  some  measure  to  contribute  ;  if  only,  as  I  have  to- 
day attempted,  by  helping  to  hew  out  a  few  stones,  which, 
when  fitly  joined  together  by  some  master  builder  of  our 
profession,  may  be  used  towards  erecting  the  edifice  of 
American  Jurisprudence,  of  which  this  magnificent  capi- 
tol  of  your  Empire  State  may  well  be  a  symbol.  Founded 
on  the  rock  of  justice  and  equal  right,  its  massive  walls 
''  four  square  to  all  the  winds  that  blow,"  its  portals  open 
to  the  humblest,  while  its  spacious  chambers  worthily  re- 
ceive the  greatest, — may  that  edifice  forever  stand,  forever 
grow,  the  abiding-place  forever  of  Liberty  and  Law. 


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U.C.BERKELEY  LIBRARIES 


CDsmion? 


THE    LITERARY    LIFE    SERIES. 
Vol  I.— authors    AND    AUTHORSHIP. 


The  Literary  Life. 
The  Chances  of  Literature. 
Concerning^  Rejected  MSS. 
The  Revvard.s  of  Literature. 
Literature  as  a  Stafif. 

Literature  as  a  Crutch,  ^ 

The  Con!4 

Vol.  II.— pen  PICTU; 


CONTENTS : 

Some Xiterary  Confessions. 
J' ii"^^  Vj^pearance  in  Print 


/ 


Thomas  Carlyle. 
George  Eliot. 
John  Ruskin. 
John  Henry  Nevvmar 
Alfred  Tennyson,/^ 
Ralph  Waldf)  &'    -r-,^. 
William  Cullr 
Longfelloy 


w 


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ny  Side  of  Letters. 

Society, 
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»D£RN  AUTHORS. 


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:1  Hawthorne, 
litman. 
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urne  and  Oscar  Wilde. 
-  Brownings, 
-harles  Dickens. 
William  Makepeace  Thackeray 
nger  Writers. 


-:^S    OF    EARLIER    VICTORIAN 
AUTHORS. 


^ytton. 
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Thomas  Babington  Macaulay. 


CONTENTS  : 

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VVashington  Irving, 
Edgar  Allan  Poe, 
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